Conditions Necessary for Enforceability

Just because you have an antenuptial agreement, and just because Ohio now allows them to be enforced in court, that does not mean that your particular antenuptial agreement is going to be enforced. Herein lies the value of a careful reading of this work over a simple package form you bought over the internet with nothing to explain it or how it works.

In Ohio, antenuptial agreements will be upheld so long as certain requirements are met. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464 at 466, 628 N.E.2d 1343. Whether an antenuptial agreement meets these conditions is a question of fact for the trial court. Bisker v. Bisker (1994), 69 Ohio St.3d 608 at 609-610, 635 N.E.2d 308.

When I was in training in the United States Air Force, our instructors at Lackland Air Force Base, San Antonio, Texas, used to tell us that when they came to something very important, they would stamp on the floor three times before saying it.

When I was in law school, the instructors would try to hide the important things from us by asking a bunch of questions rather than dispensing useful information under the theory that talented lawyers could figure things out on their own. This is called the Socratic Method.

I much prefer the approach of the Air Force. Stomp, stomp, stomp.

A. Required Conditions for Enforcement

Antenuptial agreements are valid and enforceable if three basic conditions are met: 1), if they have been entered into freely without fraud, duress, coercion or overreaching; 2), there must have been a full disclosure, or full knowledge, and understanding, of the nature, value and extent of the prospective spouse’s property; and, 3), the terms do not promote or encourage divorce or profiteering by divorce.

Let’s look at these conditions individually, and break down the cases whereby certain antenuptial agreements have been found valid or invalid because of compliance or failure to comply with these conditions, with a quick side note beforehand and immediately below.

1. Fiduciary Relationship

Before we can examine the conditions for enforceability of the antenuptial agreement, we must consider that a court is not going to look at your antenuptial agreement in terms of what lawyers call an “arm’s length” transaction. An arm’s length transaction would be one where two unrelated and disinterested parties agree to something. An example would be the decision to purchase a car from an automobile dealer, or a decision to have one plumber fix your clogged drain instead of another. In an arm’s length transaction, each party is allowed to drive as hard a bargain as they can.

Rather, the court is going to look at the relationship as the opposite of an arm’s length transaction. That is called a “fiduciary relationship.” The parties who have agreed to marry stand in a fiduciary relationship with each other. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464 at 466, 628 N.E.2d 1343. As such, the parties entering into antenuptial agreements must meet certain minimum standards of good faith and fair dealing. Zimmie v. Zimmie (1984), 11 Ohio St. 3d 94 at 98.

2. Three Main Conditions

a. Absence of Fraud, Duress, Coercion or Overreaching

To have an enforceable antenuptial agreement, the court must be satisfied that both parties entered into it without fraud, duress, coercion or overreaching. This means that the parties must not have been trying to defraud each other in the presentation of the agreement. Further, one party cannot agree under circumstances in which his or her will to do so is in serious question. The term “overreaching” is used in the sense of one party by artifice or cunning, or by significant disparity to understand the nature of the transaction, outwits or cheats the other.

The burden of proving fraud, duress, coercion, or overreaching remains with the party challenging the agreement. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464 at 467, 628 N.E.2d 1343.