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Divorce in the Wake of a Premarital Agreement

May, 2023

After the big proposal, months of planning, and all the joy a wedding can bring for the bride, groom, and their families and friends, a Premarital Agreement is likely the last thing on their minds before the big day.

However, many couples in Indiana are considering Premarital Agreements (also known as prenuptial agreements or “prenups”) for a variety of different reasons.

What is a Premarital Agreement?
A Premarital Agreement is a written agreement deciding in advance what will happen to the couple’s personal property and assets in the case of a dissolution down the road.

Premarital Agreements must be in writing, signed by both parties before the marriage, and will take effect on the date of the wedding. (I.C. § 31-11-3-2 and I.C. § 31-11-3-4). The Premarital Agreement will describe the property and assets held by each party and delineate what should happen to these assets and pieces of property upon dissolution. (I.C. § 31-11-3-3).

To promote fairness to both sides, both parties should seek legal representation to keep their best interests in mind as the Agreement is drafted. The attorneys can help each party talk through potential issues and terms of the Agreement before it is signed.

Why enter into a Premarital Agreement?

Premarital Agreements are no longer used just by the ultra-wealthy. While some high-asset couples will enter into Premarital Agreements to protect their assets and property, more and more couples are entering into Premarital Agreements simply out of convenience and to maintain control over their property and assets without a judge’s involvement.

Without a Premarital Agreement, a couple is placing the future of their property and assets into the hands of a judge who may not understand the couple’s pre-marriage, post-dissolution goals. Signing a Premarital Agreement allows the couple to keep control of their personal assets and allow for a simpler division of property.

In addition, signing a Premarital Agreement may greatly shorten the time that the lengthy dissolution process can take, which is another reason some couples will prepare and sign a Premarital Agreement.

Unless there is a defect in the Premarital Agreement itself or it is ruled unconscionable, Indiana courts will enforce Premarital Agreements. (I.C. § 31-11-3-8).

Kids and Premarital Agreements (I.C. § 31-11-3-5)

Indiana law will not allow for a Premarital Agreement to pre-decide outcomes on child support or child custody issues. Since custody issues are subject to the Indiana Best Interests of the Child Standard (I.C. § 31-14-13-2), a court will not allow future parents to decide these issues before children are in the picture. Furthermore, child support exclusively belongs to the child herself and not to either parent. Therefore, any child-related issues will have to be decided after dissolution and should not be included in a Premarital Agreement.

We Signed a Premarital Agreement and Have Decided to Seek Dissolution. Now what?

Talk to the lawyer who drafted the Premarital Agreement for you. He or she can likely draft your Petition for Dissolution to comply with the Premarital Agreement and attach the Agreement as an exhibit. And if the lawyer is unavailable, he or she can refer you to someone who can.

The NCS Family Law Team can guide you in this intricate area of law.

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