The terms “reconciliation agreement,” “postnuptial agreement,” “postmarital agreement,” “separation agreement,” “marital agreement” and “settlement agreement” have been the subject of considerable Indiana appellate court commentary without legislative guidance. For premarital agreements, Indiana adopted its version of the Uniform Premarital Agreement Act (UPAA). The Indiana UPAA emanated from a 1983 model act drafted by the National Conference of Commissioners on Uniform State Laws, also known as the Uniform Law Commission. The UPAA was intended to provide consistent rules and procedures from state to state while recognizing diverse state precedent.
Notably, the UPAA did not apply to or deal with postmarital agreements. In 2012, the ULC remedied that absence by drafting the Uniform Premarital and Marital Agreements Act (UPMAA). The UPMAA incorporated the UPAA and defined a “marital agreement” as an agreement after marriage by spouses who intend to remain married but who seek to affirm, modify or waive marital rights or obligations, including by an amendment to a premarital agreement. The text of the UPMAA provides that state law determines the validity, enforceability, interpretation and construction of premarital and postmarital agreements. However, the UPMAA goes on to offer standards for that determination. For example, the UPMAA states that, like a premarital agreement, a written postmarital agreement is enforceable without consideration and effective at signature by both parties. Under the UPMAA, premarital and postmarital agreements are enforceable to the extent necessary to avoid an inequitable result if a marriage is determined to be void. A lengthy section of the UPMAA applies to enforcement and requires, among other things, consent without duress, access to independent legal representation, a detailed waiver of legal rights, special provisions related to spousal support waivers and eligibility for public assistance, and unconscionability (at the time of signing) and substantial hardship (by enforcement of a term due to a material change in circumstances after signing) assessments.
The goal of the ULC in drafting the UPMAA was to provide uniform standards for postmarital agreements as it had for premarital agreements under the UPAA. That goal has not been realized due, in part, to seemingly inconsistent provisions in the UPMAA and the difficult policy considerations for contracts between spouses. At present, 26 states have enacted the UPAA. Only two states (North Dakota and Colorado) have enacted the UPMAA, with an attempt to pass legislation in 2021 failing in Montana.
So the question remains: Is there a need for the legislation in Indiana? In 2019, I catalogued the history of postnuptial agreements in Indiana and suggested that some statutory guidance (not necessarily the UPMAA) was necessary. Is that still the case? With a focus on 2015 forward, the answer remains, “Yes.”
In Hall v. Hall, 27 N.E. 3d 281 (Ind. Ct. App. 2015), trans. denied 31 N.E.3d 976 (Ind.), the Court of Appeals of Indiana expanded the reach of postmarital agreements. The parties married on March 2, 2004, but separated months later after the husband was imprisoned. In December 2004, following separation, the wife obtained counsel and informed the husband that she wanted a divorce. The husband told the wife he would do anything to stay married and suggested a postmarital agreement. In 2005, the wife drafted a document entitled “Postnuptial Agreement” that provided for a distribution of marital property in the event of divorce. The parties signed the postnuptial agreement, the wife dismissed the divorce case and the parties lived together from June 2006, when the husband was released from prison, until separating on Oct. 23, 2013. On Nov. 5, 2013, the wife filed a petition for dissolution of marriage and moved to enforce the postnuptial agreement. Following an evidentiary hearing, the trial court determined the postnuptial agreement was a valid and enforceable reconciliation agreement. On June 24, 2014, the trial court entered a decree of dissolution of marriage providing for the division of marital property in accordance with the postnuptial agreement.
The husband appealed and the Court of Appeals affirmed, noting other panels of that court recognized that public policy favored the written amicable settlement of divorce cases. See Gaskell v. Gaskell, 900 N.E.2d 13 (Ind. Ct. App. 2009), and Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. Ct. App. 1991). The Court of Appeals, while acknowledging that the language used in Gaskell and Flansburg focused on a valid reconciliation agreement being made by parties who had either filed a petition for legal separation or a petition for dissolution of marriage, rejected that requirement. The parties were sufficiently separated without a filing to find that the postnuptial agreement led to the extension of the parties’ marriage. The proper inquiry, according to the Court of Appeals, is whether postmarital agreements were executed in order to preserve and extend marriages that otherwise would have been dissolved but for the execution of the contract regardless of whether the parties separated or filed any legal actions. Hall created a new, more expansive legal standard for enforcing postmarital agreements. See also Buskirk v. Buskirk, 86 N.E.3d 217 (Ind. Ct. App. 2017) (citing the Hall standard for enforceability and enforcing a postmarital agreement).
While Hall seemingly provided a new standard for enforcing postmarital agreements, confusion remains. The shadow of Pond v. Pond, 700 N.E.2d 1130 (Ind. 1998), and its mixed use of the terms “reconciliation agreement” and “dissolution settlement agreement” does not define, let alone clarify, what a postmarital agreement is and how it is different from a reconciliation agreement. Two not-for-publication opinions since Hall (Rink and Speichert) show that Hall did not bring the clarity that it suggested.
In order to attain needed clarity, the Indiana General Assembly could start with the UPMAA and (a) define “reconciliation agreements,” “separation agreements” (as defined in Gaskell) and “postmarital agreements,” (b) set forth when non-reconciliation postnuptial agreements are enforceable and express the balance of public policy considerations first identified in Flansburg, and (c) distinguish these agreements from divorce settlement agreements contemplated by and under the discretionary ambit of Indiana Code § 31-15-2-17. This worthwhile effort would rectify the obvious shortcomings of the UPMAA, explain how reconciliation agreements and postmarital agreements fit within the Indiana statutory scheme, and end the inconsistencies that can be found in or argued from Indiana appellate decisions. It also would put Indiana at the forefront of a muddled set of state laws that the ULC has yet to be able to harmonize.
Indiana General Assembly: The ball is in your court to address this vexing issue that impacts more and more Hoosiers over time.•
Drew Soshnick is a partner in the Indianapolis office of Faegre Drinker Biddle & Reath LLP. He is a past chair of the Indiana State Bar Association Family & Juvenile Law and Indianapolis Bar Association Family Law sections and a fellow of the American Academy of Matrimonial Lawyers and International Academy of Family Lawyers. Opinions expressed are those of the author.