USA – INDIANA Law and Practice Contributed by: Drew Soshnick, Faegre Drinker Biddle & Reath, LLP
2.5 Prenuptial and Postnuptial Agreements
itation, roles of each party, economic contribu - tion of each party, non-economic contribution of each party, and other factors may affect how a court divides the property of the cohabitants that is subject to division. 2.7 Enforcement If a party fails to comply with a financial order, the other party may file a motion to enforce the financial order. That motion may seek enforce - ment by contempt (not applicable to money judgments), compelling compliance with the terms of the divorce decree, an income with - holding order, or any other remedies available for the enforcement of a court order (see Indiana Code Section 31-15-7-10). In an effort to avoid enforcement issues, the receiving party may request security, such as pledge of assets, liens on stock or membership units, direct payment provisions, life insurance, and other assurances. International enforcement of financial orders is permitted in Indiana – again, with more scrutiny given to orders from non-Hague Convention countries. 2.8 Media Access and Transparency In Indiana, the media and press are able to report on financial cases. Courts are open to the pub - lic. However, if there are issues that would fall within the confidentiality of the Indiana Rules on Access to Public Records Act, courts may restrict access to proceedings and court docu - ments. Trade secrets, confidential and propri - etary financial and other information, and other types of non-public information may be protect - ed from disclosure. There are two primary methods of seeking ano - nymity of proceedings. Parties may file a divorce case in any county in Indiana (subject to the oth - er party requesting to move the case back to a
Indiana has adopted the Uniform Premarital Agreement Act (Indiana Code Section 31-11- 3-1 et seq) for prenuptial agreements executed after 1 July 1995, and has robust case law that promotes the validity and enforceability of pre - marital agreements so long as there is no fraud, duress, coercion, or unconscionability. Case law on postnuptial agreements is less developed and the validity and enforceability of postnup - tial agreements is discretionary and often deter - mined based on whether the contract is neces - sary to extend a marriage that otherwise would be dissolved. The history of the case law for postnuptial agreements has evolved from 1991 to the present date, balancing public policy con - siderations with freedom-of-contract principles. Courts presume the validity and enforceability of prenuptial agreements. It is a more fact-sensitive analysis with postnuptial agreements. For pre - nuptial agreements, see In re Marriage of Boren, 475 NE 2d 690 (Indiana 1985) and its progeny. For postnuptial agreements, see Hall v Hall, 27 NE 3d 281 (Indiana Court of Appeal 2015). 2.6 Cohabitation Indiana case law treats the separation of cohab - iting couples far differently than divorce. Only the joint property of the cohabitants is divisible and there is no statutory presumption as to the division of that property. There are no statutory provisions and situations are assessed based on contract, quasi-contract, unjust enrichment, equity, and similar principles. For the history of the development of this common law, see Glas - go v Glasgo, 410 NE 2d 1325 (Indiana Court of Appeal 1980) and its progeny. While there is no statutory provision and only selected case law guidance, the length of cohab -
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