Saturday, January 26, 2008

Indiana Prenuptial FAQ

What is the Indiana law for prenuptial agreements?
Indiana's statute is Indiana Code 31-11-3. Indiana adopted the Uniform Premarital Agreement Act ("UPAA"). The other half of Indiana's prenuptial agreement law consists of appellate court opinions interpreting IC 31-11-3.

If Indiana courts have not interpreted one of the UPAA's statutes, you will need to take a look at the other states interpreting the UPAA. Twenty-five other states and the District of Columbia have the UPAA as their law on prenuptial agreements. Those states are as follows (courtesy of Wikipedia):

Arizona, Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, and Wisconsin.
For more information on uniform laws: List of Uniform Acts (United States) and The National Conference of Commissioners on Uniform State Laws.

What is a prenuptial agreement?
A prenuptial agreement is a premarital contract executed in contemplation of marriage and only takes effect upon marriage. In plain language, a prenuptial agreement sets out the couple's rights after marriage to marital property in case of divorce, legal separation, or death and has no power if there is no marriage. For couples who cannot or will not marry, a cohabitation agreement has the same effect (but no Indiana statute).

What is the purpose of a prenuptial agreement?
As mentioned above, the prenuptial agreement generally concerns itself with property division. For more details on this, see my post here. Ideally, a prenup eliminates a costly fight over who gets what property in a divorce or legal separation.

Why should people get prenuptial agreements?
To protect their property. I have more detailed articles on why people should get prenups when they have a business (here ) or they have children from a prior marriage (here) . However, with people thinking of prenups as unromantic eruptions of self-interest there is also a practical reason which reaffirms the marriage: financial planning. See the post, Prenuptial agreement as financial planning toool - another article. At the other end of the spectrum, a prenuptial can help when things do get ugly during a divorce.

Does everyone getting married need a Prenuptial Agreement?
Not really. Prenuptial agreements protect property. Prenuptial Agreements provide certainty for people with considerable assets prior to the marriage rather than subject those property interests to the vagaries of the courts in a divorce or probate proceeding. People with assets who do not care how a divorce court will divide their property or about the costs of fighting over their assets in a divorce, do not need a prenuptial agreement.

Can a Prenuptial Agreement cover alimony or maintenance?
First, Indiana courts cannot impose alimony but the parties can agree to alimony. Indiana law can impose maintenance in certain circumstances (see my Alimony FAQ for when a court can impose spousal maintenance).

Secondly, an Indiana prenuptial agreement can provide for the modification or elimination of spousal maintenance. Indiana Code 31-11-3-5(4)

Can a Prenuptial Agreement affect child custody or child support?
No. Indiana Code 31-11-3-5(b)is very clear about this: "A premarital agreement may not adversely affect the right of a child to support."

What kind of property will a prenuptial agreement cover?
Everything owned prior to the marriage - including rights to property that one has rights to prior to marriage but will not be collected till after the marriage. See my post Prenuptial Agreements: What Property is Included in a Prenup?.

Do my fiancé and I need our own lawyers for a Prenuptial Agreement?
Yes. If your fiancé's lawyer drafted the antenuptial agreement, your fiancé's lawyer should insist that you get your own lawyer. Just as you should insist if your lawyer wrote the prenup. A prenup where one party has an attorney and the other party does not has a higher chance of not being upheld by a court. See my post Prenuptial Agreements - When an Indiana Prenuptial Agreement is Unenforceable for more details on this issue.

Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
Yes. Indiana law makes a special provision for this in IC 31-11-3-7:

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
When writing the prenuptial agreement this statute needs to be kept in mind. Well written prenuptial agreements should consider changes and how to deal with those changes.

Are Prenuptial Agreements expensive?
I honestly can only answer this with another question: expensive in relation to what? I do not think that overall cost should come close to what a divorce would cost. In turn, that depends on the complexity of the agreement. Which in turn depends on what the parties agree upon and the amount of the property. Finally, will the attorney work on a flat rate basis or an hourly basis?

If you are weighing the costs and the benefits, then that weighing must be between litigation and no litigation. Consider the benefits of certainty given by a prenup versus the uncertainty of how a court will divide your property. Consider the costs in attorney fees and stress of fighting over and for property in divorce court versus the stress of negotiating an agreement. You should take a look at Prenuptial Agreements: Why Divorces Cost More Without Them Than With Them.

How can I save money on attorney fees?
Foremost, do not play games with hiding assets. If nothing else, this will raise serious doubts about you with your future spouse. Second, have an idea of what you want to do with your assets.

I have little use for online providers of prenuptial agreements other than potential sources of fees for litigation. See my post Prenuptial Agreements- Online Vendors for more detail, but I do think they have a better use than the one advertised. Use them not as a means for focusing ideas, as an outline rather than a final product. Used this way, they allow you to shift quickly from what you want to do with a prenup to how to carry out your ideas. Used as a rough draft, these cookie cutter prenups serve a good purpose that is truly saves money.

Why do lawyers like prenuptial agreements?
We like happier clients. No client comes out of a divorce happy with that divorce regardless of how successful they were in court. Prenuptial agreements have the potential of making clients happier with the whole legal process and maybe their marriage, too. We know that a prenup benefits a client in many ways and continue to promote the use of prenuptial agreements. We do that even though we know the studies show that our potential clients do not see the benefits. (See Prenuptial Agreements: Why Divorces Cost More Without Them Than With Them and Prenuptial Agreements - Why Are They Not Used More Often? for some articles on the benefits being ignored by people.)

What if I do not have assets until after I get married?
You and your spouse can enter into a post-nuptial agreement. The prenuptial statute does not control this type of agreement but a post-nuptial agreement ought to follow the general rules of a prenuptial agreement. You will find all of my posts on post-nuptial agreements here.

What do I do if I want to keep up on the news about Indiana prenuptial and post-nuptial agreements?
The easiest thing for keeping up to date is use the e-mail subscription service to get e-mail updates of this blog. You go to the top of the right hand column and you will see where to sign up for e-mail updates. You can also see my other articles on prenuptial agreements by clicking the link below that reads "prenuptial agreements".

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