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Prenuptial and Postnuptial Agreements

Prenuptial agreements, commonly referred to as “prenups,” are a common source of drama in the media and sometimes in real life.  The idea of signing a “what-if” agreement before saying “I do” in preparation for the failure of something that is supposedly a forever contract is not generally seen as a positive step.  However, a prenuptial agreement is in essence a contract preceding a legal partnership, the legal partnership of marriage.  Postnuptial agreements, or “postnups” are not nearly as commonly used or referred to in everyday life or in the media, but both types of agreements are recognized by Indiana law.

What is a Prenup?

A prenup is a contract between a couple signed before the couple gets married.  It is a contract to protect the financial assets of the signatories in the event of a divorce.  For some couples, a prenuptial agreement is an important part of the pre-marriage process, while for others, it can be a substantial obstacle in the process.

Prenuptial agreements are generally enforceable under Indiana law absent fraud, duress, mistake, misrepresentation, or the non-disclosure of material facts.  Additionally, a court will not enforce a prenup that is unconscionable, or if the situation has changed so much as to make enforcement unfair and unreasonable.  During the negotiations of the agreement, it is most practical for both sides to be represented by counsel, although not entirely necessary.  However, a court is more likely to find an agreement unenforceable where one party is not represented by an attorney.

What is a Postnup?

Postnuptial agreements are post-marital contracts.  Recently, the use of postnups have become more popular, although they continue to be rare.  The agreement is similar to a prenup, the main difference being that the contract is signed after the couple is married.  The purpose of a postnup, however, is the same: to protect the assets of the individuals and any income gained during the relationship.  A postnuptial agreement can also be used to revise a prenup in order to ensure the agreement covers all of the assets.  A postnup could also help to solve some financial issues that may arise during the course of a marriage.  Indiana recognizes the legitimacy of postnuptial agreements, given that certain specific requirements are met.  An Indiana Family Law attorney may help tp ensure that a postnuptial agreement is enforceable.

Who Should Consider a Postnup?

There are many situations in which a couple might consider a postnuptial agreement.  A postnup might prove necessary or advisable if one or both spouses own a business to protect.  A couple that is experiencing discord surrounding issues of finance might also consider a postnup in order to create more harmony within the marriage.  Another example of a situation in which one might consider a postnup is where there has been adultery in the marriage, in order to ensure the other spouse maintains some security.

Should You Consider a Prenup or Postnup?

While not all couples consider prenuptial or postnuptial agreements, an Indiana Family Law attorney could help you and your partner in making this decision.  Contact an attorney to help determine your options and assert your rights.  Attorney Chris Arrington might be able to help you in this process.

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