"What are the Indiana laws regarding prenuptial agreements? Should I have a prenuptial agreement?"
Ciyou & Dixon, P.C. divorce attorneys understand relationships are not static and endeavor to monitor the rule of the community and state in which they live and practice. The reasons parties marry change, as do some of the root causes of divorce in Indiana. Everything changes, and effective divorce lawyering embraces change.
Perhaps one of the most significant changes in the legal landscape – a topic which was taboo 10 or 20 years ago – is the open dialogue that marriage is an economic partnership as much as it is a romantic one; and as such, the marriage may not last as long as the parties live.
For this reason, prenuptial agreements are a talking point, albeit a sensitive one, for many couples contemplating marriage. Particularly where there is a large age difference or in the amount of money a party may bring into the marriage, this should be at least consciously considered, even if ultimately rejected.
Because it is a delicate issue, a common mistake Ciyou & Dixon, P.C. family law attorneys see is the parties waiting until too close to the time of marriage to bridge the subject. This makes a prenuptial more likely to be subject to challenge at a later date for duress, cause assets to be inadvertently omitted, or create a situation where the divorce lawyers are unable to properly draft and revise the agreement and advise the parties about it. For this reason, a forthright discussion should be considered well in advance.
At Ciyou & Dixon, P.C. we can help you first analyze whether a prenuptial agreements meet your needs and protects your interests now and into the future. For clarification, a prenuptial agreement is also sometimes referred to as an anti-nuptial or premarital agreement.
A prenuptial is best thought of as any ordinary contract. In addition, Indiana, along with other states, has brought uniformity to this body of contract law by adopting a version of the Uniform Premarital Agreement Act.
If a premarital agreements make sense in your case, the key to it being enforced by a court at a later date is full disclosure, careful draftsmanship, and independent counsel for each party. In the event the marriage later fails, this is where it comes into play. The prenuptial scripts how the marriage is to be unwound, namely pursuant to the terms of the pre-marital agreement.
We at Ciyou & Dixon, P.C. understand these pitfalls, and carefully guide our clients to take steps to avoid these risks. Another key component of our representation focuses on helping you understand other limitations on what a prenuptial agreement cannot do.
Two illustrate the point. First, a prenuptial agreement cannot prospectively address child-related matters. Custody, parenting time, and child support are matters only the court can decide in the best interests of the child. In addition, such provisions are always modifiable.
Second, notwithstanding a provision of the premarital agreement to the contrary, a trial court may order spousal maintenance in limited cases. This may occur if its enforcement at the time of the divorce causes extreme hardship to one spouse which were not reasonably foreseeable at the time of divorce. A catastrophic injury or major health issue are such circumstances.
Under the legal umbrella of a contract to guide unwinding the marriage, is a post-nuptial agreement. These are not talked about as much by parties and their divorce lawyer, but Ciyou & Dixon, P.C. attorneys always endeavor to mate the right legal tool to the need at hand. A post-nuptial may do so. These are sometimes referred to as reconciliation agreements and are also treated as contracts in Indiana.
These are utilized where the parties acknowledge the marriage is in trouble, but want to solider on and try to make it work. In the event it fails, however, they do not want bear the risks associated with the financial unknowns of a contested divorce down the road.
As consideration for continuing on in the marriage, the contract for how the marital estate will be divided if it does fail in the future. Child-related issues are treated as with premarital agreements; the parties cannot agree to custody, parenting time, and child support matters. A trial court would not enforce such, unless it happened to comport with the law.
This frames the legal parameters guiding prenuptial agreements and contracts to determine dissolution of marriage prospectively. If a pre-nuptial agreement fosters your marriage, or a post-nuptial removes some of the stress in it, this tool should be considered. The family law advocates at Ciyou & Dixon, P.C. can help you assess this tool relative to your legal needs and risk now and in the future.