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.
Are you wondering if a prenuptial agreement or postnuptial agreement is right for you? Contact us!