Prenuptial And Postnuptial Agreements
“We are getting married next week; can I just have my lawyer draft up a prenuptial agreement and have my fiancé sign it? My spouse is pregnant, and we are excited to be a family, but if we divorce, I want our child, can I put this in a postnuptial? What’s the difference between a pre- and post-nuptial?”
A prenuptial agreement is nothing more than a contract the parties enter into to determine how their assets are to be divided by a divorce court if divorce should occur in the future. These are nothing more than contacts. Indiana has a statutory scheme that clarifies that entering into a prenuptial agreement is legal to do; this body of law in Indiana is called the Uniform Premarital Agreement Act and has also been applied to postnuptials.
In the event of divorce, the prenuptial is presented to the court and asked to be enforced to address the marital assets it covers.
That said, there are some things the parties cannot agree to by a premarital agreement. This should seem logical, but the parties are prohibited from entering into any agreement (contract) as to how children born of the marriage will be treated as far as legal and physical custody are concerned.
This is sole determination for the judge who is charged with looking out for the children’s best interests. This prohibition expands across the entire segment of child-related issues. For instance, the parties cannot agree what child support will be at the time of dissolution because child support belongs to the child.
While the bargain for the marriage is the prenuptial, there are certain ways to make it much easier to challenge. First, the prenuptial agreement should be signed well before marriage. Second, each party should obtain counsel to advise what he or she is giving up by way of the prenuptial. Third, each premarital agreement must have schedules setting for the approximate net worth of each individual, so each party knows what they are giving up by entering into the prenuptial agreement.
A postnuptial agreement is a generally the same contract as to how assets are divided on divorce, but this is done during the marriage for it to continue because of existing marital strife. That is the consideration (or what is given of value for a party to enter into a post-nuptial). While this legal right and tool is not recognized in the Uniform Premarital Act, it is recognized under Indiana law.
The key with a postnuptial is clear disclosure of marital assets and liabilities and separate counsel. Postnuptials are inherently seen as documents that should have been prepared and entered into before marriage. However, they are enforceable if the correct steps are taken. In any event, each side should have clear competent counsel as postnuptials have less legal support than prenuptials.
Dixon & Moseley, P.C. handles pre- and postnuptial for all types of individuals (most of whom has significant assets or businesses). This investment is a small price to pay when divorce is filed and an equal division of assets is the presumption.