In today’s digital world with global work and play, people from different cultures, backgrounds, and ages marry. In many cases, there are significant differences in net worth, age, and business ownership. For this reason, some couples choose to enter into pre-marital agreements under Indiana’s Uniform Pre-Marital Act.
A prenuptial is a document or series of documents, that specifies what a divorce court is to do in divorcing the parties in a divorce filing when separating their assets and liabilities. This blog addresses legal issues you should understand if you contemplate entering into a pre-marital agreement.
The first and most important concept to understand about Pre-Marital Agreements is that they are contracts; these contracts give the parties’ flexibility to agree to terms in the event of a divorce filing that a divorce court could not order. Additionally, they make for certainty in the case of divorce as to the division of assets.
First, by way of example, Indiana is not a strong alimony state. Except for disability or maintenance for up to three years to obtain job skills, an Indiana divorce court cannot order maintenance as generally thought of as a type of “alimony”. This is something that might be very important to an unskilled potential spouse marrying an older person. He or she would know, barring insolvency, that in the event of divorce, a certain sum of alimony will be paid for months or years. This right to contract is guaranteed in the Indiana and United States Constitutions.
On the other hand, a prenuptial agreement cannot void public policy. Provisions for sexual requirements or custody of children violate public policy. These both have been found unenforceable in courts presented with pre-nuptials in the past. These are only two of many examples of pre-nuptials that may be unenforceable in the future in the event of divorce. Thus, it is key to have an attorney, who understands contract and divorce law, work through your side of the pre-nuptial.
Second, and as already alluded to in this blog, cultural expectations cannot be contracted for in a prenuptial as it relates to children. The Indiana court where the prenuptial is presented may not enforce it in whole or part if it attempts to usurp the trial court’s independent duty to make a custody decision in the best interests of children.
An example of where this may come into play is where a to-be groom comes from male-dominated societies, such as some countries in Africa or the Middle East. In these countries, there may be a male-preference for custody or fault-based divorce; these provisions, if contained in a pre-nuptial, are not enforceable here.
Third, and most applicable to later enforceability in court, is there must be full disclosure of assets, the right for each party to have independent counsel, and the lack of duress. Duress may be inferred if the pre-nuptial is done just before the wedding. All of these limits are set forth in the Uniform Premarital Act or case law.
These are perhaps the most generally applicable considerations to a prenuptial agreement. They are important planning tools. They have limits, such as removing a trial court’s authority to determine custody in a child’s best interests. However, they have a key place in divorce pre-planning and are valuable tools in certain situations.
This blog post was written by attorneys at Dixon & Moseley, P. C. handle the full spectrum of domestic issues, ranging from premarital agreements to divorces to appeals. We hope it has provided you with useful information in understanding the full range of rights and remedies under Indiana divorce law. This blog is not a solicitation for legal services or a specific legal advice. It is an advertisement.