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A premarital agreement is only as strong as its conscience

A premarital agreement is a terrific way for people heading into a marriage in Indiana to protect themselves should the marriage fail. Among the many rules of contract that such an accord must comply with is the requirement that it be conscionable.

Indiana Code controls when a premarital agreement is enforceable, specifically noting that it is not enforceable if it is unconscionable. It puts the determination of unconscionable into the hands of the Court when a premarital agreement comes before it.

In the recent case of Fetters v. Fetters, the main issue surrounded whether the premarital contract of the parties was conscionable. In that case, the Court of Appeals of Indiana reviewed a premarital agreement between a 16-year-old and her intended who was 15 years older than she.

Mr. Fetters had begun an illicit affair with then-15-year-old Julie the year prior, when he was 30 years old. When Julie became pregnant, the law began making noise about his alleged misconduct with a minor. Mr. Fetters decided to propose to protect himself from criminal charges. In Mr. Fetters’ attorney’s office, Julie, along with her mother, signed a premarital agreement agreeing that each shall retain his or her own property. Many years and two children later, Julie filed for divorce and asked that the court void the premarital document as unconscionable.

In holding the agreement to be unconscionable and void, the Court of Appeals noted the great disparity in life experience between Julie and Mr. Fetters at the time of the signing. He benefitted from the marriage by avoiding prosecution while Julie gained no benefit. In fact, she dropped out of high school and took low-wage jobs as a result. The property division was one-sided. Lastly, the Court found it notable that Julie had a lack of education and difficulty reading and had no independent legal advice before signing the document.

When a premarital agreement does not control property division upon divorce because it is unconscionable or otherwise void, Indiana’s laws controlling distribution of assets may then take place.

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