Getting married is generally considered one of the greatest events in a person’s life. The early days of a marriage often seem ripe with possibility and evoke excitement about what is to come as the couple moves through life together. Contemplating that the relationship could end in divorce is not something most people want to do, but given that there is no way to fully know if the marriage will last, executing a prenuptial agreement is often worthwhile.

Prenuptial contracts allow both parties to settle key divorce issues of property division and spousal maintenance, which serves to protect the parties’ assets from the rules enforced in a divorce, and also makes the divorce process easier overall. While prenuptial agreements are not particularly romantic, they are pragmatic. Deciding property division and spousal support while a couple is on good terms will produce an agreement both parties can accept, rather than an arrangement each party is forced to acknowledge. The goal of prenuptial agreements is to avoid the need to fight over these matters during the divorce, but there are cases in which the terms of a prenuptial agreement are challenged.

During a LaPorte County couple’s divorce, a central issue became whether certain cars owned by the husband fell within the terms of the prenuptial agreement because if not, they were subject to equitable distribution under Indiana divorce law. This situation illustrates why hiring an experienced family law attorney to draft prenuptial agreements is important to ensuring the parties’ intentions are accurately integrated into the contract. An overview of the requirements to create a valid prenuptial agreement, and what the parties are permitted to decide within it, will follow below.

Forming a Valid Agreement

First, in order for prenuptial agreements to be enforceable, they must be made in contemplation of marriage, and the marriage must actually take place. This requirement exists because unmarried couples have no property rights to the assets of the other party. Thus, unmarried couples living together cannot form this type of agreement to control how property will be divided if the couple breaks up. Next, the agreement must be written and signed, so oral discussions about a prenuptial agreement are not binding on either party. If after marriage the couple decides to modify or revoke the prenuptial agreement, these changes must also be in writing and signed by both parties.

Permissible Terms

Indiana law specifically limits the types of terms prenuptial agreements are permitted to include to property rights and spousal support. On property, a couple can contract on which party has rights to:

• Control;
• Manage;
• Sell;
• Lease;
• Buy;
• Mortgage; or
• Use any property owned jointly or separately by the parties.

Further, the parties have the option of setting when these rights will take effect, which is usually triggered by a legal separation, divorce, or death. In addition, the couple has the ability to decide:

• If spousal support, once awarded, may be modified or terminated;
• Whether a will, trust or estate planning document is necessary to carry out the agreement’s terms; and
• Who retains rights to death benefits in life insurance policies.

Note that the law specifically prohibits a couple from eliminating a party’s child support obligation, and grants the court authority to disregard limitations on spousal support if it would result in extreme hardship.

Consult an Indiana Family Law Attorney

If you are thinking of divorce and have a prenuptial agreement in place, you still need an experienced divorce attorney to review the terms to make sure they fully address your circumstances. In addition, if you have children, there are other issues outside of the prenuptial agreement that must be addressed. Attorney Christopher L. Arrington handles divorce and family law cases in the Indianapolis area and can assist you with starting the next phase of your life. Contact him to schedule an appointment.