Prenuptial and Postnuptial Agreements Mesa AZ

When a couple decides to tie the knot, legal protection may not be the first thing on their minds. However, whether you are planning to spend the rest of your lives together or are already married, prenuptial and postnuptial agreements can provide clarity and peace of mind for both parties.

Some people find this especially reassuring in Arizona, which is a community property state. This means that all property the couple acquires during the marriage is considered shared property and is equally split if they divorce. Drawing up a legally binding prenuptial or postnuptial agreement could help both parties know where they stand if they decide to go their separate ways in the future.

This guide will explain how both agreements work in Arizona and whether either is right for you. We will also explore how a prenuptial agreement lawyer can help you in the decision-making and drafting process.

Prenuptial Agreements in Arizona

A prenuptial agreement, often colloquially known as a “prenup,” is called a premarital agreement in Arizona law. A prenup is a legal contract that sets out the rights and responsibilities of each spouse in the following situations:

• During the marriage
• If the couple decides to divorce
• If one of the spouses passes away

Prenuptial agreements are regulated by the Arizona Uniform Premarital Agreement Act, which outlines the scope, enforcement, amendment, and revocation rights, as well as the limitations of such agreements. A prenup must be signed before the civil or religious wedding ceremony, and is null and void if the wedding is cancelled, to be legally enforceable.

When Couples Should Consider a Prenup

Couples of all ages who are contemplating marriage should have an open conversation about whether a prenuptial agreement is right for them. An experienced family law attorney can also advise you on the pros and cons of your situation. Increasingly, older couples who decide to marry are choosing to sign prenups as they may have children from previous marriages or substantial assets.

If you are in any of the following situations, it is wise to talk to a family law attorney about getting a prenup:

• One or both of you already have significant real or financial assets
• One or both potential spouses have children from a prior relationship
• There is a wealth disparity between the two parties
• One or both potential spouses have significant debt
• One or both partners own their own businesses
• One or both parties are retired
• There is a large age gap between the potential spouses
• One or both parties expect to receive a significant inheritance

While no couple goes into marriage planning to divorce, a prenuptial agreement lets you know where you stand if you do have to divide assets one day.

Components of an Arizona Prenuptial Agreement

Depending on the personal and financial circumstances of both potential spouses, the contents of a prenup can be wide-ranging. It must begin with a full and fair disclosure of each party’s assets and financial responsibilities.

The prenuptial agreement can then touch on several areas, including:

• Division of assets: A prenuptial agreement outlines which individual assets each spouse will keep in the event of a divorce. This could even include who keeps the family pet.

• Debt allocation: Prenuptial agreements explain who will be responsible for premarital debts. It could also cover those incurred during marriage, settling questions such as who will be responsible for making mortgage payments or other loan repayments.

• Spousal support: A prenuptial agreement can establish the spousal maintenance each spouse would be entitled to receive if the couple chooses to divorce.

• Inheritance rights: Inheritance rights are commonly outlined in prenuptial agreements for blended families when one or both of the spouses have children from a previous relationship. This way, biological children inherit in accordance with their parents’ wishes.

Remember, prenups are legally binding documents that could have a big impact on your financial future. Do not take chances or proceed without legal counsel.

Every couple’s situation is different and requires tailored divorce advice from a prenuptial agreement lawyer with years of experience in practicing law in Arizona. A knowledgeable family law attorney can carefully consider your specific situation and help you draw up a prenup that covers all bases. Each spouse may choose to seek legal counsel from his or her own attorney to ensure individual needs are met.

Are prenups enforceable in Arizona?

If prenups are correctly drafted in accordance with the requirements of Arizona Revised Statutes (ARS) 25-202, they are enforceable after the marriage.

However, prenups become unenforceable if any of the following is true:

• One party did not sign the agreement voluntarily

• One party did not fully reveal his or her property or financial obligations

• The spouse did not waive, in writing, his or her rights to a full disclosure of assets and financial obligations

• The other spouse did not have adequate knowledge of the other spouse’s assets and obligations

In legal terms, the final three points would render an agreement “unconscionable.” If you believe that you did not have all the facts when you signed your prenuptial agreement, talk to a family law attorney. Family lawyers can help you navigate Arizona’s statutes and protect your legal rights.

Other situations in which a prenup may not be upheld

The court may refuse to uphold the terms of a prenup if the spousal support terms put one party in financial difficulties. Suppose the terms of the prenup mean that one party becomes eligible for public assistance at the point of separation or divorce. The court may require the other spouse to provide enough spousal maintenance to make the spouse ineligible for public assistance.

Also, if your marriage is declared void, the enforceability of the prenup is called into question. The law states that it is enforceable only to the “extent necessary to avoid an inequitable result.” Talk to an Arizona family law attorney to understand your legal rights in this situation.

Postnuptial Agreements in Arizona

If you did not sign a prenuptial agreement before getting married, a postnuptial agreement or “postnup” could be a good option. As the name suggests, it is a legal contract a couple creates after their marriage that includes similar terms to a prenuptial agreement.

Contents of postnuptial agreements

Like prenups, postnuptial agreements can contain a wide range of terms that provide peace of mind. Some common inclusions are:

• Division of property and assets: A postnuptial agreement identifies who brought what property and assets into the marriage and how you plan to divide them in the event of a divorce

• Debt division: If you brought debts into the marriage or acquired them during the marriage, you can set out how these will be divided in a postnup agreement

• Spousal support: A postnup can establish expectations around spousal maintenance, which could help avoid complications after the divorce is finalized

An experienced family lawyer is on your side and has your best interests at heart. Your attorney can help you by drafting a postnup that can secure your financial future.

The legal standing of postnuptial agreements in Arizona

Unlike prenuptial agreements, postnups are not protected by a specific statute. However, this does not mean that they are not legally enforceable.

Precedent cases, such as the 1969 case of In re Harber’s Estate, established that post-marital agreements about the division of property can be valid. However, they must stand up to scrutiny and be free from coercion or fraud.

Postnuptial agreements can speed up the divorce process if you do decide to go your separate ways. If your divorce is handled in court, the postnuptial agreement can guide the division of assets and debts.

A postnuptial agreement could also help you avoid going to court. If you resolve your divorce through an out-of-court settlement, having a legally binding agreement that sets out the decisions you made while you were still married could speed up the settlement process.

What you cannot include in a postnuptial agreement

A postnuptial agreement can be very useful, but certain things cannot be included, as they will likely make your postnup invalid. Some topics you should not include are:

• Custody arrangements: If you have children from a prior relationship, a postnup is not the right place to establish child custody or child support arrangements.

• Living and visitation arrangements: In the event of a divorce, postnuptial agreements cannot be used to determine where a child will live or establish visitation arrangements. Family courts, which look out for the best interests of children, will handle these arrangements.

• Personal concerns: A postnuptial agreement cannot be used to attempt to control one or both parties’ behavior or lifestyle choices. Any inclusions of this nature would likely be unenforceable.

How to ensure postnuptial agreements are enforceable

Although postnuptial agreements are not governed by a specific statute in Arizona, many of the same factors apply when considering how to make them enforceable. Some major considerations include:

• Full financial disclosure
• Proper documentation
• Willing agreement

To avoid the postnup being challenged on the grounds of voluntary agreement, it is advisable for each spouse to seek independent legal counsel. Having personal legal representation can ensure that each party is happy with the terms and does not feel coerced into signing the agreement.

Seek Trusted Advice for Prenuptial and Postnuptial Agreements

Both prenuptial and postnuptial agreements can provide clarity and peace of mind for couples who want to secure their financial future. However, both need to be handled sensitively, and it is vital that the drafting process is carried out by a knowledgeable family law attorney. This will give you the confidence that if the agreement is needed in the future, it will be enforceable.

At Brown Family Law, we handle sensitive family situations every day. Our attorneys are skilled in helping couples create marital agreements that strengthen confidence in each other and their union. At an initial consultation, an experienced family law attorney will guide you through the process and ensure you are clear about your legal rights every step of the way.

If you are ready to learn more about how a prenuptial or postnuptial agreement could benefit your marriage, schedule a consultation with our legal team today. Call 480-882-0767 or complete our online contact form, and we will call you to arrange a consultation very soon.