When the subject of marriage is broached between a couple, rarely is the potential need to protect assets in the event of divorce also considered. Marital finances may be discussed, but not necessarily how to untangle them. Couples on the brink of marriage shy away from such sobering conversations because neither want to contemplate a romantic relationship ending at its height. However, not planning ahead for the possibility of divorce can complicate the process since there would be no established guideposts on the issues of property division and spousal maintenance (alimony). Instead, the parties would need to hash out an acceptable settlement themselves, or leave the decision to a judge, who may not produce an outcome that either spouse finds satisfactory.

In its most basic form, a prenuptial agreements is a contract between couples planning marriage that outlines how property should be divided and if spousal maintenance should be paid. However, child custody issues cannot be decided in this manner for public policy reasons. These contracts become enforceable on the date of the marriage, but may be modified by the parties in the future if circumstances call for changes. While these agreements are intended to simplify key aspects of a divorce, their validity can be challenged in certain cases. A discussion of grounds for contesting the enforceability of a prenuptial agreement will follow below.

Statutory Grounds for Challenging Prenuptial Agreements

The function of a prenuptial agreement is to direct the unwinding of a couple’s marital estate, which courts want to uphold to the fullest extent possible since the presumption is the parties are in a better position to decide these issues over the decisions of a court. Thus, they do not really come into operation until a divorce petition is filed, at which time a spouse could seek to enforce the terms of the prenuptial agreement or challenge its validity. However, assuming there was full disclosure of financial information by each party, competent drafting of the agreement, and an independent review by attorneys for each spouse, courts are unlikely to invalidate the agreement. However, Indiana lays out several limited circumstances under which part or all of a prenuptial agreement may be deemed unenforceable by a court, including:

• The agreement was signed involuntarily, i.e., a party was coerced or forced; or
• The agreement was considered unconscionable (unreasonable) when executed because its modification or elimination of spousal maintenance would leave one party in extreme hardship. Note that the extreme hardship does not have to be foreseeable when the agreement was signed, and a court is authorized to order maintenance to avoid this result.

Other Issues that May Affect Enforceability

In addition to the grounds to challenge the enforceability noted above, other issues with the creation or execution of the document could also bring its validity into question. Examples of additional factors that could affect the validity of an agreement into question include:

• The agreement was not written, which is a requirement to be a legal prenuptial contract;
• Both parties did not sign the agreement, or it was signed after the marriage, both of which are also requirements; or
• One party provided false or incomplete information about income, assets or liabilities. Full disclosure of financial information is a requirement in these agreements to ensure the other party fully understands what they are giving up, a necessary element of voluntarily signing a prenuptial contract.

Contact an Indiana Divorce Attorney

Divorce brings up a lot of complicated issues that are often difficult to resolve without outside help. An experienced divorce attorney can clarify your legal rights and options and help you make decisions that will help you move forward in the long-term. Christopher L. Arrington, P.C. is available to answer all your questions and will work to create solutions that meet your goals. Contact our Danville law firm to schedule an appointment.