Ohio's Love-Hate Relationship with Marital Agreements: Why Ohio Should Lift Its Prohibition on Postnuptial Agreements

Ohio has been accepting of prenuptial agreements since its landmark decision in Gross v. Gross in 1984, declaring them to be not void per se as being against public policy. Unfortunately, Ohio’s evolution of the law regarding marital agreements has remained at a stand-still since Gross. Through the twenty-first century, a majority of states have responded to the evolution of marriage by enacting legislation, or judicially by court order, to allow spouses to enter into contracts after marriage to allocate the division of property and legal obligations of the couple in the event of divorce, commonly known as “postnuptial agreements.” Ohio remains in the minority of jurisdictions that strictly prohibit spouses from entering into postnuptial agreements. Ohio Revised Code Section 3103.06 forbids a husband and wife from altering their legal relations after marriage; thus rendering postnuptial agreements void and unenforceable in Ohio. The antiquated language and patriarchal principles of Ohio’s current statute should be revised to modernize Ohio’s law in conformity with other states. Further, Ohio Revised Code Section 3103.06 violates a party’s freedom to contract, and should be amended to allow spouses to alter their legal relations with the enactment of certain conditions to protect the fiduciary relationship from fraud, duress, undue influence, and unconscionability.