A postnuptial agreement is less common than a premarital agreement. While they are similar to premarital agreements in that they address the same issues, they are different in that a postnuptial agreement is entered into after a couple is married. Indiana’s version of the Uniform Premarital Agreement Act does not apply to postnuptial agreements, so the interpretation and enforceability of these documents are guided by case law. Until recently, the validity and enforceability of these contracts were clouded in uncertainty. The only recognized basis for upholding a postnuptial agreement was the dismissal of a then-pending dissolution of marriage action for a court to determine whether there had been adequate consideration.
In 2015, the Indiana Court of Appeals extended what started with the reconciliation cases and determined that a postnuptial agreement was valid and enforceable if it was entered into for the purpose of extending a marriage that would otherwise have resulted in divorce.
It is not very clear that subsequent postnuptial agreements will be upheld or found to have had adequate consideration, nor whether an agreement entered into after marriage without marital strife would be upheld. However, we believe it is at least something to consider as an option to save a marriage without resorting to divorce.