Premarital Agreements

What is a Prenuptial Agreement?

Also known as a premarital or antenuptial agreement, it is a contract between a man and woman that is executed in contemplation of marriage. The consideration for the contract is the promise to marry and it only becomes effective upon the marriage of the parties.

What are the requirements of a Prenuptial Agreement?

The contract must be in writing and signed by both parties. It becomes a binding contract and any amendments or revocation of the agreement must be made in writing and signed by both parties. No additional consideration is necessary for an amendment or revocation. The contract requires both parties to fully disclose all assets and voluntarily enter into the agreement.

What rights and obligations can be agreed to in a Prenuptial Agreement?

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. The parties cannot provide for a determination of child custody, nor can they adversely affect the right of a party to receive child support.

What makes a Prenuptial Agreement unenforceable in Indiana?

If the marriage is determined to be void for any reason, the prenuptial agreement is also void. The agreement must be conscionable, so if one party was coerced or forced to sign the agreement, it may be invalid. A court may determine conscionability based on the circumstances prior to and at the signing of the agreement. Additionally, a prenuptial agreement may be unenforceable if the parties had agreed to modify or eliminate spousal maintenance and the terms of that modification or elimination will cause extreme hardship to one spouse unknown at the time of the agreement. Both parties to the agreement must be fully informed of the contents of the agreement and should retain their own attorneys prior to signing.

What law governs Prenuptial Agreements?

In 1995, Indiana adopted the Uniform Premarital Agreement Act and codified it in the Indiana Code under Title 31, Chapter 3. Like any other contract, if the prenuptial agreement was lawful in Indiana, it will be enforceable in other states.

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