Prenuptial and Postnuptial Agreements: The Advantages and Requirements

Behind the scenes of all the fun and excitement that goes into getting married, there is a lot of planning. Whether that be planning the wedding, planning the honeymoon, or planning your future, there will be numerous conversations to ensure that your affairs are in order, both separately and together. In Indiana, all assets are considered joint marital assets upon divorce. So, deciding how your assets will be divided upon divorce or death before you even get married can ensure that you and your spouse are protected financially. Even if you are already married, in certain circumstances, you may still be able to enter into an agreement to protect your assets.

A prenuptial agreement, or prenup, is a legal contract between two potential spouses who would like to outline the management of their collective and individual assets and debts. The document is drafted prior to marriage, listing the assets, property, financial accounts, and businesses of each party. First and foremost, prenups provide guidance for the management and distribution of assets throughout the marriage. If you have children from a previous relationship, you may want a prenup to ensure that your children inherit your assets as you desire by excluding those assets from the marital pot under your new marriage. Additionally, if you own a business, a prenup can protect your business interests. Finally, a prenup can make a divorce less complicated and allow you to quickly resolve legal issues, saving you and your spouse time and money.

Indiana law has enacted the Uniform Prenuptial Agreement Act (“UPAA”), a set of guidelines to determine the enforceability of prenuptial agreements. The UPAA requires that all prenups must be in writing and signed by both parties. Additionally, each party must fully disclose each of their financial assets and debts and each party must voluntarily agree to the prenup. A court may invalidate a prenup if it was so unfair that it would be an injustice to enforce it or if there is evidence that one party was under duress when the prenup was signed.

In comparison to a prenup, a postnuptial agreement is made after the marriage has already begun. Postnups may be an option for couples who were hesitant to get a prenup or either party did not have many assets that they need to protect before the marriage. If you or your spouse’s financial situation significantly changes, such as if one of you receives an inheritance, you may want to protect your assets by preparing a postnup; however, a postnup can be beneficial to anyone regardless of wealth, because it focuses primarily on protection. Postnups have more stringent requirements for being valid, however, so it is important to consult with an family law attorney to determine whether you can complete one.

With all the planning that goes into a marriage, no one plans for divorce or death; however, thinking of a potential worst-case scenario to ensure protection for you and your partner is an important conversation to have. Obtaining a prenuptial or postnuptial agreement is a decision that should be made between you and your spouse. Call us at (317) 825-5110 to speak with an experienced Shelbyville family law attorney who can help you navigate the process.

This McNeely Law LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.