Prenuptial Agreements and Postnuptial Agreements: What to Know

By: Brian K. Zoeller and Nicole Makris, Attorneys

Prenuptial agreements and postnuptial agreements are practical resources for couples seeking to simplify the property aspects of their relationships by designating how the property and debts of their marriage will be distributed in the event of a future legal separation, divorce, death, or other event.

What is a Prenuptial Agreement?

Far from a new concept, the ancestor of today’s prenuptial agreement, also known as a premarital or antenuptial agreement, is estimated to date back around 2,000 years. Under Indiana Code 31-11-3-2, a premarital agreement is an agreement between prospective spouses that is executed in contemplation of marriage and becomes effective upon marriage. These agreements define the parties’ property rights in the event of legal separation, divorce, death, or other events. Because of this, courts have noted that prenuptial agreements are favored in that they can resolve property issues that otherwise would be the source of litigation.

In order for a prenuptial agreement to be valid, the agreement must be in writing, cannot be unconscionable, and must be entered into freely, without fraud, duress or misrepresentation. Full disclosure between the soon-to-be spouses as to their individual assets and debts is extremely important when entering into a prenuptial agreement to insure their enforcement.

Prenuptial agreements can prove to be extremely valuable in the event of legal separation or divorce by outlining each spouse’s property rights, from real estate to bank accounts. Prenuptial agreements also distinguish responsibility for the debts of the couple, such as student loans and credit cards. Having an agreement on these issues before marriage can minimize the number of issues that the couple would otherwise have to determine if a spouse later files for legal separation or divorce.

What is a Postnuptial Agreement?

Postnuptial agreements, also known as reconciliation agreements, are a useful option for couples who are facing the possibility of divorce but are willing to reconcile. When there has been infidelity or other conflicts in the marriage, postnuptial agreements provide couples with the opportunity to reconcile while outlining their respective rights and responsibilities as to marital property and debts in the event that the relationship ends in the future.

The key distinction between prenuptial agreements and postnuptial agreements is that postnuptial agreements take place after the couple is married rather than before the marriage. As with prenuptial agreements, the couple should fully disclose to one another the extent of their assets and debts.

Prenuptial agreements and postnuptial agreements are useful tools for couples who wish to clearly outline how the marital estate is to be divided in case a legal separation, divorce, death, or other event occurs in the future.

Maximizing the Possibility that Using an Entity For Your Business Will Actually Limit Liability

By: Arend J. Abel, Attorney

Many times, business owners will set up one or more corporations, or other entities such as LLCs, to conduct business.  Typically, the entities are created to limit the owner’s liability for the business’s debts, or to protect one business from the liabilities of another business.  However, often the owner does not go beyond formation of the entity to take the additional steps needed to maximize the chance that having one or more entities will fulfill those goals.  Absent those steps, Courts sometimes disregard the existence of the entities by “piercing the corporate veil” and hold the owners liable for the business’s debts, or hold one entity liable for the debts of another.  Here are some steps that can help avoid such a result.

Keep Finances Separate and Document Transfers

The most important step in making sure the entity is recognized as separate from its owner is to keep the owner’s and the entity’s financial affairs strictly separate.  Among other things, this requires a good set of books for the entity, and a separate bank account.  Multiple entities each should have a separate set of books. Any transfers between owner and entity should be scrupulously documented as loans, capital contributions, distributions, or salary, depending on the nature of the transfer.  Transfers between the entities should be avoided, if possible, unless one entity is a subsidiary of another.  If one entity is a subsidiary of the other, then transfers from the subsidiary should be documented as distributions or dividends.  Transfers from parent to subsidiary should be avoided, but if necessary should be documented as loans or capital contributions.  Other inter-entity transfers should ordinarily be documented as loans and, again, should ordinarily be avoided.

Adequately Capitalize the Entity When Formed

One factor Courts look at in deciding whether to pierce the corporate veil is whether the entity was adequately capitalized when formed.  Many business owners don’t contribute substantial working capital to an entity at the outset, instead simply moving money in and out of the entity as needed.  But the lack of capitalization, and shuffling funds in and out, creates a risk a court will disregard the entity.  Given that a business will inevitably have expenses and need working capital, the owner should put in an amount large enough to sustain the business’s expenses for several months, at least.  A year’s worth of expenses is even better.  The money should be put into the entity when it is formed, in exchange for shares the entity issues to the owner.

Create and Issue Share Certificates

Another step that owners should take is to actually issue share certificates, in exchange for the capital contributions made when the entity is formed.  It is surprising how many business owners fail to take this basic step.  The absence of share certificates suggests that the owner is doing business in his personal capacity, rather than through the entity.  This creates an unnecessary risk of personal liability.

Have Separate Phone Numbers, Addresses and Letterhead

The owner and the business should have separate phone numbers, even if the business number is forwarded to the owner’s line.  They should also have separate addresses.  If the business is run out of the owner’s home, even a P.O. box as a corporate address helps reinforce the fact that the business is separate from the owner.  Multiple entities should also have separate phone numbers and addresses.  The entity should have letterhead for correspondence, and if there are multiple entities, each should have its own letterhead.

Use Distinct Names for Multiple Entities

Another factor courts sometimes look at in piercing the veil between multiple entities is whether they share similar names.  Avoiding similar names is another way to reinforce corporate separateness between entities.

Have a Management Structure and Regular Meetings

If the entity is a corporation, it should have a Board of Directors.  If there is only one shareholder, trusted advisors can act as members.  The Board should meet at least once a year.  If there are multiple shareholders, they should also meet at least once a year.  Even a single shareholder can have a “meeting” at which corporate action is taken.  No Board of Directors is required for an LLC, but if there are multiple members, they should have regular meetings.  The entity should issue notices before the meetings, and a corporate secretary should document all meetings with minutes.  Minutes, notices, and corporate resolutions should be kept in a minute book.

To maximize the chance that entities formed for businesses will effectively shield the owner from personal liability, and will shield the assets of one entity from the debts of another, business owners should consult with an experienced attorney to guide them through the process.

Protecting Confidential Business Information

By: Arend J. Abel, Attorney

Sometimes businesses face a situation where an employee has departed and taken key information that can be used to hurt the business competitively.  This article focusses on steps a business can take to minimize that risk, and if information is nevertheless stolen, to seek redress under the Uniform Trade Secrets Act.  The Act has been adopted in Indiana and most other States.

Identify the Information to be Protected

The first step a business should take is identifying the specific information to be protected.  Customer lists may be some of the most valuable information a business has, and their theft and use by competing businesses may cause severe harm.  Other information, including formulas, business processes and technology, can also be valuable trade secrets.  A trade secret can be any information that derives independent economic value from not being generally known and not being readily ascertainable by other parties through proper means, i.e., means other than stealing the information from the business.

Take Reasonable Steps to Maintain Secrecy

Information does not qualify as a trade secret unless the business has made reasonable efforts to keep the information secret.  These efforts can and should include physical and electronic security measures.  The business should keep paper information in locked offices and filing cabinets.  Electronic information should be protected through the use of computer security that limits access to the information to only those employees who need to know the information to do their jobs.  In some cases, the business should require employees with access to confidential information to use only company-provided computers, phones, and portable devices to conduct company business and store company information.

A business should also maintain the secrecy of its confidential information by requiring employees with access to the information to sign non-disclosure agreements.  The agreements should list the types of information the employee is barred from disclosing.

Non-competition agreements are also an important tool to maintain the secrecy of confidential information.  However, non-competition agreements must be reasonable in scope.  This means that the geographic area in which the employee is barred from competing must be well defined , and no broader than necessary to protect the employer’s legitimate interests.  The agreement must also be limited in time, barring the employee from competing for only as long as necessary.  Finally, the agreement must be limited in terms of the activities prohibited.  Typically, agreements should prohibit the employee only from working for a competing business in the same or a similar capacity as the employee worked for the business with which the employee signed the agreement.

Enforcing Restrictions

Sometimes, despite the business’s best efforts, an employee may steal confidential information and use it to compete.  In such cases, the only recourse may be litigation against the employee.  A business might obtain a court order requiring the employee to stop using the information and return it.  If there is a non-competition agreement, a court may prohibit the employee from competing in violation of the agreement’s time, geographic and activity limitations.  If the business has been harmed, damages may be available.

To protect confidential business information, a business owner should consult with an attorney experienced in such matters, including litigation.  Cohen & Malad, LLP’s business and litigation attorneys can assist with this process.

Elbow Replacement Device Recalled After Patients Report Serious Injury

By: Jeff S. Gibson, Attorney

Roughly 3,000 people in the U.S. have elbow replacement surgery each year. There are multiple conditions that can cause elbow pain and disability which lead patients and their doctors to consider elbow joint replacement surgery. Rheumatoid arthritis, degenerative joint disease, post-traumatic arthritis, severe fractures, and instability are the most common conditions that lead to elbow replacement.

Taking Access Rights and Altering the Nature of Property Can Have Lasting/Devastating Effects

By: J. Eric Rochford, Eminent Domain Attorney

Taking access rights to commercial or special use properties can be devastating to the business operated on site as well as the remaining value of the real estate.  However, just because a condemning agency takes access to property, doesn’t necessarily mean that it will or is required to pay for it.  The determination of when/if access rights are compensable in a particular taking can be complex.  Often times removal/relocation of access to property can result in the business shutting down and the remaining value of the real estate being reduced to pennies on the dollar compared with what the owner previously thought or expected the property to be worth.

Delays on I-69 Construction Project and the Impact on Section 6 Land Acquisitions

By: J. Eric Rochford, Eminent Domain Attorney

By now I’m sure all Hoosiers are well aware that the construction of I-69 Section 5 between Bloomington and Martinsville has been significantly delayed – by significant I’m referring to years, not months.  The primary design-build contractor and subcontractor for this section of the I-69 Project, I-69 Development Partners and Isolux Corsan, completely blundered the project and Isolux Corsan is now pending bankruptcy.  The big question for the property owners along the final portion of the I-69 Project, Section 6, is: what impact do the delays on Section 5 have on the timing for the land acquisition process for Section 6?

The Impact of IndyGo Red Line Project for Broad Ripple Property Owners

By: J. Eric Rochford, Indianapolis Eminent Domain Attorney

The City of Indianapolis’ most recent effort in “rapid transit” is the IndyGo Red Line.  Phase 1 of this project is estimated to cost $96 million.  It will travel from College Avenue in Broad Ripple, along 38 Street, down Meridian Street, through Fountain Square and ending at the University of Indianapolis.  The 13.5-mile stretch of bus line will require the elimination of travel lanes, parking spots, and driveways on College Avenue, 38^th Street, Meridian Street and Virginia Avenue.  The project is almost certain to have a significant impact on vehicular traffic both during and after construction for those drivers who use these streets in Broad Ripple and downtown Indianapolis.  However, some property owners will bear a much more significant burden.

What is an Order of Protection?

By: Casandra L. Ringlespaugh, Attorney

The Indiana Civil Protection Order Act, or ICPOA, is a set of laws passed Indiana in 2002 in regards to domestic and family violence. Under the ICPOA, Courts can issue Orders to protect people from domestic or family violence, stalking, or a sex offense. These Court Orders are called “Protection Orders” or “Orders for Protection,” and the terms are used interchangeably. A protective order may be issued when a Judge finds, by a majority of the evidence, that the respondent (other person) represents a credible threat to the safety of petitioner…

Use of File Sharing Site Causes Waiver

By: Arend J. Abel, Attorney

Lawyers for an insurance company got a nasty surprise when a federal district court held that their use of the file-sharing service Box® waived attorney-client privilege and work product protections for the company’s entire claims file.  On February 9, in Harleysville Insurance Company v. Holding Funeral Home, the United States District Court for the Western District of Virginia decided that putting the file in an online “folder” for which it had previously sent a link to a third party waived both the attorney-client and work product protection.

Judicial Qualifications Commission Gives Green Light to Tweeting at Trial

By: Arend J. Abel, Attorney

You may remember just over a year ago when a partner in Barnes & Thornburg’s Chicago office was sanctioned for live-tweeting a trial.  That event makes all the more surprising an Ethics Opinion that the Indiana Commission on Judicial Qualifications issued last month.  According to the Commission, live-tweeting a trial does not amount to “Broadcasting,” which is barred by Rule 2.17 of the Code of Judicial Conduct, except in very narrow circumstances or with prior permission of the Supreme Court.