What about if I am already married?
Divorce rates in America might be on the decline, but the statistics are still staggering. For example, 41 % of 1st marriages end in divorce; 60 % of 2nd marriages end in divorce; and 73 % of 3rd marriages end in divorce! Another interesting trend is that people tend to be getting married later in life, after they have completed their educations, built a career foundation, and accumulated some assets (a 401k, a house, a car, etc.).
When you finally decide to marry, it is easy to get caught up in the bliss of being in love and engaged, planning a future together. It is very hard to think about “what if this doesn’t work?” With the exception of child related matters, you can plan for divorce.
Prenuptial Agreements often have a bad reputation, and are often considered something the very wealthy use. This is not true. Prenuptial Agreements serve a very important purpose if you are entering into a marriage with any assets at all, or believe that you will acquire assets (such as retirement accounts) as your income increases during the marriage. Remember, in Indiana, everything, no matter how it is titled, is presumed to be divided 50/50 upon divorce.
Another divorce planning tool, similar to the Prenuptial Agreement, is the Postnuptial Agreement. A Postnuptial Agreement is simply a Prenuptial Agreement that is entered into after the marriage has already occurred. Some reasons a Postnuptial Agreement may arise is when a couple is contemplating divorce, and a main factor is financial disputes, the agreement can help to settle these disputes and the marriage could continue once those disputes are settled. Certainly when disputes arise, and a couple chooses to stay married, there is always the nagging feeling that maybe the reconciliation will not work, and a formal Postnuptial Agreement can serve to quell those feelings and prepare in the event that the reconciliation doesn’t work.
Whether it is a Postnuptial or a Prenuptial Agreement, these divorce planning tools are grounded in contract law. Generally, adults who are not otherwise incapacited, have the freedom to contract, and a court will only disturb (change or invalidate) a contract if it was entered into under fraud or duress. In Indiana, a Pre or Postnuptial Agreement, can be invalidated also if it is unconscionable, meaning it is so skewed to one side that one party would be wealthy and the other destitute. Additionally, the law presumes that there was full disclosure of the assets and debts of the parties, at the time the contract was entered into.
Having an agreement like this in place will inherently reduce the costs if a divorce occurs. But also, and especially a consideration for later in life marriages, these agreements can also serve as a basis for what will happen should one spouse die. For example, a spouse has children from a previous relationship and he or she wishes to provide some assets to the children, and not the current spouse.
With all the tax, property ownership, and the dissolution laws in place, marriage and divorce is very much like a business transaction, and businesses often use contracts to set out expectations before engaging in business. Bear in mind that if divorce never arises, the agreement is nothing more than a piece of paper.
While Pre and Postnuptial Agreements can be useful as it relates to property and money, they cannot be used to determine some child related matters, such as custody, parenting time, or otherwise, as those considerations must be made at the time of a change in circumstances (i.e. a divorce) and be in the best interests of the children.
At Dixon & Moseley, P.C. we hope you consider your marriage sacred and one for life, but at the same time be aware of statistical failure rate of marriage and the benefits of a Pre or Postnuptial Agreement.
We hope that you have found this information to be helpful in understanding a Prenuptial and Postnuptial Agreements. This is not intended to be legal advice. If you have questions or concerns about your specific case, Dixon & Moseley, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.