April 1st, 2018 by Wanzer Edwards
You have probably heard of a prenuptial or premarital agreement which engaged couples use to establish their rights and responsibilities for property and debt that each is bringing into the marriage. These agreements allow engaged couples to determine how their property and debt will be divided if they divorce or one of them dies after marriage. But what if you are already married and want such an agreement?
Indiana law allows married couples to enter agreements similar to prenuptials in certain circumstances. These agreements are called postnuptial agreements. Originally a postnuptial agreement was only valid if one of the spouses in a marriage had already filed in court for legal separation or divorce. Spouses already in the process of a divorce or separation could sign a postnuptial agreement in order to settle financial differences as a part of reconciliation of their marriage. Dismissing the divorce or legal separation would be a requirement of these agreements, which are sometimes called “reconciliation agreements”.
Changes in Indiana law have allowed couples to use postnuptial agreements even if they have not filed for legal separation or divorce. If a married couple uses a postnuptial agreement to reconcile a marriage which would have ended without the agreement, there is no requirement that one of the spouses actually file for legal separation or divorce. This can help a couple whose disagreements are about money or property. If the disagreement is severe enough that it would end the marriage, the parties can solve the disagreement with a contract that sets their legal rights and responsibilities about the money or property issue that has caused the marriage to falter.
It is wise to ask a lawyer to help write a postnuptial agreement to make sure it meets the legal requirements and will be enforceable. Call Wanzer Edwards for a consultation about your postnuptial questions.
December 5th, 2014 by Wanzer Edwards
A common and widely held misconception when Indiana residents are considering divorce is that the name on the title of a specific piece of property indicates who will own it after the divorce. This is not so. Indiana is a “one pot” state which means that everything individually owned by each spouse and jointly owned by the parties all gets poured into a single pot. It is that pot that is subject to division during divorce.
If you do not have a premarital or prenuptial agreement, everything that you own or that your spouse owns is part of the pot or “marital estate”. Imagine a large black cauldron. Now place into the cauldron all real estate, vehicles, cash accounts, retirement accounts, personal property, whole life insurance policies, business interests and every other kind of property. Also place into the cauldron all credit cards, mortgages, loans, debts and financial obligations. On the day that either spouse filed for divorce, put the lid on the pot and close it. Whatever is inside on the date of filing is the marital estate that the court will divide between the parties.
While it can be difficult to accept that a piece of property that you brought into the marriage or a retirement account in your individual name is part of the pot, Indiana law does not remove from the pot items earned in one person’s name or brought into the marriage by one person. When dividing the marital estate or pot, the court must start with the presumption that an even division of the pot is fair. This does not mean the each individual asset is split in half….this would be very impractical for the division of your coach and coffee maker! Instead, a whole asset or debt can be set aside for one spouse while something of equivalent value is set aside for the other spouse. There are reasons to vary from an even division, so you should talk to your attorney about whether the facts of your case qualify.
Work with your attorney to identify each piece of property and debt that is in your marital pot. There is likely a division of that pot which is fair and meets your reasonable needs and interests.
February 1st, 2013 by Todd Dickerson
Many times, soon-to-be brides and grooms shy away from a premarital agreement or “prenup” for fear that it communicates a lack of trust to their fiancée. Premarital agreements get a bad name from television and movies, which portray them as documents used by the “super rich” to swindle unsuspecting spouses out of everything. The truth about premarital agreements is far less sexy.
A premarital or prenuptial agreement is a legal contract which sets the financial expectations of both bride and groom should one spouse die or should the marriage end in divorce. Indiana law imposes certain rules and presumptions onto people facing a divorce or the death of a spouse if there is no premarital agreement. Entering a premarital agreement prior to marriage allows the spouses to decide what works best for their family. This is often most helpful for people who have been married before and are entering marriage a second or third time. Those people may want to ensure that certain property goes to their children from their first marriage at death or is safeguarded from division in divorce to allow it to be passed to their children later.
A premarital agreement is also a wise move when entering a first marriage when one or both spouses have already accumulated significant assets. U.S. Census figures show that the average age of Americans at the time of their first marriage continues to increase; in 2010, the average age for men was just over 28 years, for women just over 26. Educated, professional people who have acquired assets benefit greatly from the disclosure and discussions that occur during the process of writing a premarital agreement. Discussing what each future spouse has and what each expects financially is a relationship building exercise. It is that “money talk” that is strongly suggested for all marrying couples. While a premarital agreement cannot settle child-related issues like custody and child support in advance, it can establish how financial issues are going to be handled at divorce or death.
Should you get a prenup? As the old saying goes, “An ounce of prevention is worth a pound of cure.” If marriage is in your near future you should speak with an Indianapolis family attorney to discuss the assets you have and what could happen if and when you get married.