Premarital or prenuptial agreements are contracts entered into before marriage which specify the division of assets and debts in the event of divorce or death. Parties can contract for the disposition of assets and debts, purchase or sale of property, disposition of property upon separation, dissolution, death, or any other event, modification or elimination of spousal maintenance, making of wills or trusts, choice of law, and any other matter not in violation of public policy.
Premarital or prenuptial agreements are highly advised for people who enter marriage with assets that they may want to pass on to children from a prior marriage or which they wish to retain should the marriage end.
Prenuptial agreements are written contracts that help couples define how individual and commonly-held assets are to be divided should the marriage dissolve either by death or dissolution. Prenuptial agreements can be complex and must follow certain legal guidelines in order to be valid, so it’s best to consult an attorney when creating one.
Basic Requirements for a Prenuptial Agreement
In Indiana, your prenup must meet these basic guidelines:
Written. Prenuptial agreements must be written documents, signed by both parties, in order to be legally binding.
Voluntary. The agreement must be voluntary, which means that both parties must be provided a reasonable amount of time to review the terms of the agreement and to have legal consultation about those terms, if they so choose.
Full disclosure. Both parties must fully disclose all assets. If either of you does not disclose all your assets, the court can later find the agreement unconscionable. This finding usually negates any waivers either of you has agreed to and can result in additional expense and court time to sort it out – which might not work in either of your favors.
Consultation. Both you and your intended marriage partner have the right to consultation with a separate, independent attorney. You should never assume that your future spouse’s attorney will properly represent your best interests. If there is a conflict of interests, it is any attorney’s job to favor the interests of their client.
Although waiving your right to separate and individual legal consultation is generally acceptable, it is almost never advisable. If, however, either of you should decide you don’t want your own legal representation, the courts will review the waiver request in terms of that party’s business experience and their awareness of the impact of the waiver.
Waiving your right to consult with your own lawyer, who can help you understand the details of a prenuptial agreement and how they pertain to Indiana law, can result in future issues for you. You should never sign a legal agreement without first consulting your lawyer.
Collaborative Approaches to Creating a Prenuptial Agreement
Mediation and collaborative law offer approaches to prenuptial agreements that can afford you and your spouse an opportunity to create a more balanced, mutually beneficial agreement. Because you both participate and have ownership in creating the document, with the guidance of a professional, the resulting agreement is less likely to cause friction and animosity between you and your future spouse if it is ever needed.
Postnuptial agreements are increasing in popularity. They are very similar to prenuptial agreements, with the obvious exception that they are created after the couple is married.
While some people might feel that a postnuptial agreement signals the end of the marriage (or suspicious behavior on the part of one spouse or the other), there are many reasons for which a couple might want to create one – and not all of them are necessarily negative. In fact, these agreements can define the rights of each spouse in many different circumstances.
For instance, postnuptial agreements can help both spouses get a very clear view of their finances and assets through the disclosure process. In other cases, the creation of a new business or income stream or the adding of partners to an existing business can prompt the necessity of you and your spouse legally defining the rights and interests associated with the new circumstances.
Basic Requirements for a Postnuptial Agreement
Postnuptial agreements in Indiana have the same requirements as prenuptial agreements: They must be in writing, voluntary, and provide full financial disclosure of both parties in order to be valid. Both you and your spouse have a right to legal consultation to ensure that your rights and interests are represented in the document before you both sign it. (See prenuptial agreements, above.)
As with any legal contract, postnuptial agreements should be reviewed by each party’s lawyer. You should never assume that your spouse’s attorney will properly represent your best interests. If there is a conflict of interests, it is any attorney’s job to favor the interests of their client.