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Thinking About a Pre-nuptial Before Marriage: Five Things You Must Know

In today’s world, a marriage is sometimes a matter of finance as much as love and romance. For this reason, a pre-nuptial agreement is somewhat common. In particular, a party coming into a marriage with significantly more assets may want to protect them in the event of a future a divorce.

If this is your situation, there are five key legal aspects of prenuptials you must know. First, a prenuptial is a form of contract, which is protect by the right to contract under the Contract Clause of the Indiana Constitution. This means that they are favored in terms of being enforced by a trial court if challenged in a divorce proceeding.

Second, a pre-nuptial is generally not binding as it relates to children who are born before or during the marriage. This is because Indiana trial courts must (and do) look out for the best interests of the children. In other words, agreements about future custody, parenting time, and child support are not issues the parties can contract for in a pre-nuptial.

Third, such contracts are governed by contract law and a uniform statutory scheme.1 Generally, this requires the contract to be fair—and not unconscionable when it is enforced. For this reason, if there is some great change in the party’s situation from the time the agreement was entered into by the time of the divorce, the court has discretion not to enforce a prenuptial. For instance, if a party has become disabled and to enforce the pre-nuptial would make them a ward of (or need support of) the state, a pre-nuptial may not be enforced.

In addition, and fourthly, contracts are based on fair bargaining power. For this reason, if a party did not disclose his or her assets that would be subject to the prenuptial, the trial court may not enforce it. Similarly, if the pre-nuptial was entered into under duress, such as on the eve of a wedding, the same may hold true and the court not enforce it.

Finally, the key to enforceability of a pre-nuptial is for each party to have an independent attorney to explain to them the consequences, risks and benefits of a prenuptial. An agreement entered into without counsels or with one attorney representing one or both parties is suspect and less likely to be enforced.

In the final analysis, pre-nuptials are contracts to divide assets and liabilities in the event of a (future) divorce. As such, they must be carefully drafted to include the necessities of a binding contract including full disclosure; in a larger estate, this is typically best handled by counsel for each side.

This blog post was written by attorneys at Ciyou & Dixon, P.C. Ciyou & Dixon, P.C. advocates practice through the State. We hope you find this blog post informational.

  1. Ind.Code § 31-11-3-1 et seq.
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