Pre & Post Nuptial Agreements

Are Prenuptial Agreements Legal In Arizona?

A Prenuptial agreement is a contract that resolves various issues before parties marry. Such agreements are binding in Arizona if they are drafted properly. As such, a prenuptial agreement can be a valuable tool in avoiding unpleasant and costly divorce litigation on a wide variety of issues. For example, in most situations, spousal maintenance (alimony) can be waived in a prenuptial agreement. Similarly, ownership of property, characterization of income as separate or community property, and the characterization of the increase in value of separate property all can be resolved in a prenuptial agreement. Certain issues, however, cannot be resolved, such as child custody and child support.

If you are a party who wants your future spouse to sign a prenuptial agreement, it is important to contact an experienced attorney. If the agreement is not drafted properly, it may be unenforceable. Further, you may fail to include all of the protections to which you may be entitled. For example, it generally is not sufficient merely to say that whatever you owned prior to the marriage shall remain your separate property. You must consider such things as:

• What happens if you add your spouse to the deed for the house you owned prior to the marriage?
• What happens if you pay mortgage payments for your separate property with community income?
• What happens if you use community income to make improvements to your separate property
• What happens if your sole and separate business increases in value during the marriage?
• Is the compensation you received from managing your separate business community income?
• If you use a community credit card to pay for a separate debt, is the community liable for the charge?
• What happens if you pay tax obligations for your separate business with community funds?
• What happens if you use separate income to purchase assets in the name of you and your spouse?
• What happens if you guarantee a debt for your spouse’s separate business?

Similarly, if you are the party who is being asked to sign a prenuptial agreement, you also should contact an experienced attorney to review the proposed agreement. It may not be sufficient to claim years later that you did not understand what you were signing. By signing a prenuptial agreement, you may be waiving your rights on a permanent basis. For example, most people think the marriage will last forever. They do not consider the ramifications of signing a prenuptial agreement because they do not think they will ever get divorced. Things may change. There have been many cases where a young woman marries someone who has nothing at the time of the marriage. The woman is not employed because the parties frequently move as her husband claims the corporate ladder. The husband starts to earn a large salary. Then, twenty-five years later, he files for divorce and enforces the waiver of spousal maintenance in the prenuptial agreement that was signed when the parties had nothing.

This is only one possible scenario. It is very important to have an experienced attorney review and thoroughly explain a prenuptial agreement before it is signed.
Parties who are married already may enter a postnuptial agreement and thereby accomplish many of the same benefits as are provided by a prenuptial agreement.