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What Indiana law says about prenups

The state of Indiana views marriage as a contractual agreement. Therefore, there are rules governing distribution of assets if the couple divorces or one spouse dies.

What Indiana law says about prenups

The state of Indiana views marriage as a contractual agreement. Therefore, there are rules governing distribution of assets if the couple divorces or one spouse dies.

“These rules will prevail unless there is a valid prenuptial agreement specifying an alternative asset distribution scheme preferred by the couple,” says Angela Gloy, a Purdue University Extension ag economist.

Key Points

Indiana laws govern the dissolution of a marriage.

A prenuptial agreement takes precedence.

The courts prefer not to break up an operating farm if possible.

Depending upon how the property is titled, husband and wife may have equal ownership shares. “Generally, assets are divided pursuant to Indiana’s 50/50 presumption,” says Andrew Bloch, an attorney who deals with ag law, Carmel. “When the divorce is filed, the marital pot closes. Every asset and debt on the date of filing are fair game for the court to consider. If there are assets that are not contemplated at the time of the prenuptial agreement, the courts will use Indiana law to divide those remaining assets.”

However, Bloch says most courts try to prevent a family farm from being dismantled through a divorce, but unless one party rebuts the equal split assumption, the court may have no choice.

“Prenuptial agreements can be an important, albeit it touchy, subject, but farm families should seriously consider them to protect the family farming operation,” Bloch says.

Hayhurst writes from Terre Haute.

What you should include in a prenup (tial agreement)

What you put in a prenuptial agreement is up to you and your partner. It can cover anything from land to livestock, Angela Gloy notes. She’s a Purdue Extension ag economist.

Here are items Gloy and Andrew Bloch, an ag attorney, suggest considering if you’re working with an attorney to put together an effective prenuptial agreement.

Full disclosure. “A prenuptial agreement requires full disclosure of all assets and liabilities by both parties coming into a marriage,” Gloy says. “This includes all ownership stakes in the family farm business.”

A prenup usually makes the most sense when one party coming into a marriage has considerably more assets than the other, she continues. The party with an interest in a farm business may show considerably greater assets than the other party.

Financial responsibilities. A prenuptial agreement can show a plan for meeting the financial responsibilities of the marriage. For example, a spouse working off the farm may wish that only a portion of their income be available for farm business expenses.

Asset distribution. A prenuptial agreement can spell out asset distribution in advance for farm asset ownership interests. This avoids uncertainty if there is a divorce, or if one spouse dies.

Attorneys for both parties. It’s essential that both parties consult with an attorney before entering the agreement, says Bloch. It’s essential for the attorney and both parties in the agreement, he insists. “It is vital that people understand the contract they are entering into, and what potential rights they are giving up.”

Possible addenda. Some clients include an exhaustive list of cattle or machinery, Bloch says. “Knowing what to put in a prenup and what the client needs is dependent on the client’s situation,” he concludes.

This article published in the January, 2012 edition of INDIANA PRAIRIE FARMER.

All rights reserved. Copyright Farm Progress Cos. 2012.

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