Premarital agreements, also known as prenuptial agreements or “prenups,” are becoming increasingly common in Indiana. While these agreements can provide important protections for both parties entering a marriage, there are several pitfalls to avoid. This blog will discuss four key mistakes to steer clear of when drafting a premarital agreement in Indiana.
In Indiana, the cornerstone of a valid premarital agreement is full and fair financial disclosure. This means both parties must provide a comprehensive and accurate picture of their financial status. Indiana courts take financial disclosure very seriously. If one party can prove that the other failed to disclose significant assets or debts, the entire agreement could be deemed unenforceable. This is based on the principle that a person cannot make an informed decision about waiving their rights without knowing the full extent of what they are potentially giving up. Include all assets such as real estate, vehicles, investments, retirement accounts, valuable personal property, and business interests. Include all liabilities such as mortgages, car loans, student loans, credit card debts, and any other outstanding debts.
While Indiana law allows premarital agreements to cover a wide range of topics, certain provisions are considered unenforceable. Including these can weaken the entire agreement. Courts always retain the right to determine what is in the best interest of the child, regardless of what a premarital agreement says. Any provision that seems to incentivize divorce (e.g., large payouts for filing for divorce) may be struck down. While popular in celebrity prenups, clauses dictating personal behavior (e.g., weight gain limits, frequency of sexual relations) are generally not enforceable in Indiana. While you can set terms for alimony, a complete waiver might be scrutinized, especially if it would leave one spouse destitute.
A premarital agreement signed under duress or without adequate time for consideration can be invalidated by Indiana courts. Courts may view agreements signed very close to the wedding date with suspicion. The concern is that the imminence of the wedding could create pressure to sign, even if one party has reservations. Build in time for both parties to thoroughly review the agreement with their respective attorneys Keep a record of when discussions about the prenup began and document the negotiation process. While not strictly required by Indiana law, having separate attorneys for each party is crucial for the agreement's validity and fairness. This ensures both parties fully understand their rights and the implications of the agreement and helps prevent claims of coercion or undue influence later. Each party should hire their own attorney specializing in family law.
Creating a premarital agreement in Indiana requires careful consideration and planning. By avoiding these four common mistakes – failing to disclose assets, including unenforceable provisions, rushing the process, and neglecting independent legal counsel – couples can craft agreements that are more likely to withstand legal scrutiny and truly serve their intended purpose. Remember, while this guide provides a comprehensive overview, every situation is unique. It is crucial to work with an experienced Indiana family law attorney who can provide advice tailored to your specific circumstances and ensure your premarital agreement aligns with current Indiana law. The attorneys at Ciyou & Associates, P.C. have handled prenuptial agreement proceedings throughout Indiana. This blog was written by attorneys at Ciyou & Associates, P.C., and this blog is not intended to provide specific legal advice or solicitation of services as this is an advertisement.
