Most experienced divorce attorneys in Indiana will urge their clients to sign a premarital agreement before they marry (or re-marry). Such agreements are binding contracts and cover such issues as child parenting time, child custody, spousal support and asset division. Generally, these agreements serve their intended purposes by reducing or eliminating the stress and anger that often accompanies a divorce. But sometimes, the premarital agreement does not serve its intended purpose. Escaping from an unfair or burdensome premarital agreement in Indiana is not common, but with the right set of facts it can be done.
A premarital agreement must be in writing, signed by both parties, and filed with the court before the wedding. A premarital agreement that fails to satisfy these standards will most likely be declared invalid by the judge hearing the matter. Most premarital agreements are drafted by experienced attorneys, and these formal requirements are almost never omitted.
Lack of capacity
Like a will, a premarital agreement must be made by two people who have the mental capacity to understand what they are doing when they sign the agreement. Proving that one spouse lacked capacity to execute the agreement usually requires testimony from a health care provider, most frequently a mental health professional or neurologist. If the court finds that one party lacked capacity, the entire agreement will usually be thrown out.
Other reasons for finding lack of capacity
The law of Indiana recognizes other forms of incapacity. If one person can prove that they were coerced into signing the agreement, usually by a threat of a prejudicial action toward the party who is the object of coercion, the agreement will be invalidated because the coercion robbed the target of the threat of the free will necessary to possess legal capacity. A premarital agreement is also unenforceable if the signature of one party was obtained by a material fraudulent representation by the other party. Proof that the agreement was unconscionable when it was executed will also provide grounds for invalidating the entire agreement.
Legal advice from an experienced attorney
Two reasons to argue for the retention of a competent divorce attorney is if one party commences a challenge to a premarital agreement. The first reason is the obvious complexity of the factual and legal issues that must be presented to the court. A skilled lawyer must be available to assist with the presentation of these arguments. Second, most challenges to premarital agreements take place as motions before the judge where the bulk of the evidence and legal arguments are presented in written memoranda. No lay person should attempt these chores without professional assistance.