The Indiana Prenuptial Agreement Statute: What it Says and What it Means

November 02, 2022

By Keffer Hirschauer LLP

The Indiana Prenuptial Agreement Statute: What it Says and What it Means 

The Indiana prenuptial agreement statute is contained in Indiana Code 31-11-3 and is titled the “Uniform Premarital Agreement Act.” For the purposes of Indiana family law, a prenuptial agreement and premarital agreement refer the same legal document, which two partners sign prior to marriage outlining how assets will be divided in the event of a divorce or death.  

Most individuals believe that prenuptial agreements are only helpful for the very wealthy. However, they are quite helpful for all individuals. Divorces are not uncommon in today’s world. In fact, according to the CDC’s recent data, one in every 500 marriages in the United States ends in divorce. When this happens, a prenuptial agreement helps ensure a less-contentious and less-costly divorce. 

If you are considering getting married and would like to better understand the Indiana prenuptial agreement statute, it would be wise to speak with an attorney. Furthermore, if you would like to set up a prenuptial agreement prior to walking down the aisle the Indiana prenuptial agreement attorneys at Keffer Hirschauer LLP can help you draft an agreement. Call us today at 317-857-0160 or complete our online contact form to schedule a free consultation with our team.  

The Basics of the Prenuptial Agreement Statute in Indiana

The Indiana prenuptial agreement statute, contained in Indiana Code 31-11-3, defines a “premarital agreement,” as an agreement between two prospective spouses that is executed in contemplation of marriage; and becomes effective upon marriage. It further defines the “property” listed in the agreement as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.” This agreement must be in writing and signed by both parties and is enforceable without consideration.  

As stated in Indiana Code 31-11-3-5, the two parties entering into a prenuptial agreement in Indiana may contract with each other the following matters:  

  1. The rights and obligations of each of the parties in any property of either or both of party whenever and wherever acquired or located 
  2. The right to buy; sell; use; exchange; abandon; lease; consume; expend; assign; create a security interest in; mortgage; encumber; dispose of; or otherwise manage and control property 
  3. The disposition of property upon a legal separation; dissolution of marriage; death; or the occurrence or nonoccurrence of any other event 
  4. The modification or elimination of spousal maintenance 
  5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement 
  6. The ownership rights in and disposition of a death benefit from a life insurance policy 
  7. The choice of law governing the construction of the agreement 
  8. Any other matter not in violation of public policy or a statute imposing a criminal penalty, including the personal rights and obligations of the parties 

The only element of a prenuptial agreement that Indiana law explicitly states cannot contain is any element that may adversely affect child custody or the right of a child to support. Basically, Indiana law does not allow a party to put a clause into a prenuptial agreement that states, “in the event of a divorce, Spouse A cannot have parenting time with the child,” or “in the event of a divorce, Spouse A shall not be required to pay child support to Spouse B.”  

Establishing a Prenuptial Agreement

Amending or Revoking a Prenuptial Agreement in Indiana 

Per Indiana Code 31-11-3-7, prenuptial agreements can be amended or revoked. However, this must be done after the marriage has been made official and can only be done via written agreement by the two parties. When an amendment is made to a prenuptial agreement, it takes the form of additional pages added to the end of the agreement. These amendments will either alter or override any parts of the agreement that the two parties wish to modify and can be done by an Indiana family law attorney. Once notarized, the amended agreement or revocation shall then be enforceable without consideration.  

Indiana Prenuptial Agreement Statute: Enforcing an Agreement 

The Indiana prenuptial agreement statute addresses enforceability in Indiana Code 31-11-3-8, which states that “a premarital agreement is not enforceable if a party against whom enforcement is sought proves that the party did not execute the agreement voluntarily or the agreement was unconscionable when the agreement was executed.” The statute goes further to note that if a provision of the premarital agreement modified or eliminates spousal maintenance and that causes one party extreme hardship under circumstances that were not foreseeable at the time of signing the agreement, a court may still require the other party to provide spousal maintenance to the extent necessary to avoid extreme hardship.  

Postnuptial Agreements in Indiana 

Postnuptial agreements in Indiana are much less common than prenuptial agreements. In fact, the Indiana prenuptial agreement statute says nothing about postnuptial agreements, nor does any other statute contained in Indiana law. Therefore, postnuptial agreements in Indiana are left up to case law and, until recently, courts were unsure if postnuptial agreements were valid and enforceable in Indiana. However, in 2015, the Indiana Court of Appeals determined that a postnuptial agreement was valid and enforceable if it was entered into for the purpose of extending a marriage that otherwise would have resulted in divorce.  

Although this case law now exists in Indiana, it is still unclear whether subsequent postnuptial agreements will be upheld. Therefore, it would be wise to consult with an experienced Indiana divorce attorney to better understand how current case law pertains to your specific situation. Feel free to contact the Indiana family law attorneys at Keffer Hirschauer LLP with any questions regarding prenuptial or postnuptial agreements in Indiana. Call us today at 317-857-0160 or complete our online contact form to schedule a free consultation with our team.

The Benefits of Having a Prenuptial Agreement in Indiana 

Now that you have some understanding of the Indiana prenuptial agreement statute, it is time to start thinking about whether a prenuptial agreement is right for you and your spouse. While prenuptial agreements aren’t for everyone, they are known to help establish trust, fast track divorce (if the day comes), protect children and businesses, and ensure fairness when it comes to the division of assets. 

Most married couples who have signed a prenuptial agreement say that the contract helped them start their marriage off on the right foot by encouraging them to have an honest, down-to-earth conversation about their future. These conversations can be tough to initiate and challenging to have, but it opens the marriage with a clear understanding of expectations and a deeper level of trust.  

When it comes to divorce, prenuptial agreements in Indiana ensure a more smooth and timely process. While most couples agree on the decision to divorce, they often disagree on the terms of the divorce. This can result in a costly and time-consuming divorce, which is not beneficial for either party. However, a well-drafted prenuptial agreement can help a divorcing couple resolve common legal issues in a short amount of time and limit the amount of resources both sides must invest into the divorce process.  

For those who enter a marriage with children from a previous union, a prenuptial agreement will enable you to protect certain assets for your children. This ensures that they’re protected in the event of your divorce and do not lose any rights they have over your property. Furthermore, if you are a business owner, you may designate your business as a separate asset in your prenuptial agreement. This can make your business immune to divorce and prevent you from having to liquidate it.  

In the case of divorce, property distribution can often lead to long, bitter disputes. Prenuptial agreements, however, allow couples to define their marital property prior to marriage. This ensures that both sides understand how the marital property will be distributed in the event of a divorce. It also ensures fairness in sharing assets from the beginning of the marriage. This is especially true for couples where one or both partners are entering the marriage with significant assets, which they could lose in the event of divorce. 

Want to Discuss Prenuptial Agreements Today? 

Many couples feel that they do not have enough assets to warrant a prenuptial agreement. However, divorce proceedings can be extremely contentious and lengthy, and it could be a wise decision to have matters related to property division already written out and legally binding. We can help you achieve this. 

If you wish to explore a prenuptial agreement before you walk down the aisle, the skilled Indianapolis family law attorneys at Keffer Hirschauer LLP can help you draft an agreement. We will handle all the details for you and make sure your prenuptial agreement is clear and easy to understand. We take a personalized approach to every case, providing tailored representation that fits the individual needs of each client. Call us today at 317-857-0160 or complete our online contact form to schedule a free consultation with our team. 

  

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