In a major shift in Ohio law, Ohio spouses are now legally permitted to enter into postnuptial agreements as of March 23, 2023. After a long history (more than 130 years) of rejecting postnuptial agreements, Ohio joins 48 other states in allowing parties, after marriage, to enter into agreements between them that may alter their legal relations (spousal property/support rights) with each other, including but not limited to, modifying the terms of prior prenuptial agreements.

Prenuptial Agreements May Now Be Modified After Marriage

Simply stated, Senate Bill 210 (which was signed by Governor DeWine on Dec. 22, 2022) expands spouses’ ability to enter into agreements that alter their legal relations/spousal rights. It further permits prenuptial agreements to be amended or modified after marriage and allows courts to terminate a decree of legal separation on the filing of a motion signed by both spouses.

Postnuptial Agreements

Historically, Ohio law has rejected postnuptial agreements as against public policy. With this change, however, spouses may enter into postnuptial agreements under the following conditions:

1. The agreement must be in writing and signed by both spouses
2. The agreement must be entered into freely without fraud, duress, coercion or overreaching
3. There must be full disclosure, or full knowledge, and understanding of the nature, value and extent of the property of both spouses
4. The terms must not promote or encourage divorce or profiteering by divorce

To be clear, these conditions will require a great deal of time, planning and care to be effective and enforceable. Moreover, due to the potential to materially alter spouses’ rights to property and support in a divorce, postnuptial agreements likely will be reviewed with a great deal of attention and scrutiny by Ohio courts to assure that they were entered into by the parties “freely without fraud, duress, coercion or overreaching.”