There are many reasons that engaged couples would want their property to be accounted for in certain ways and an experienced Phoenix attorney can explain all of those options to you. It is important to realize that prenuptial agreements are not appropriate in every situation. However, in many cases, it is in your best interest to define what property will go where if a divorce or death happens. Protecting your property is one of the most important things you can do to safeguard your future.
- Under Arizona Revised Statute § 25-201 “property” can be any form of personal or real property and any present or future interest in that property. Cash, bank accounts, investments, retirement accounts, and employment income are all forms of personal property.
Some common reasons for a couple to draft a prenuptial or postnuptial agreement include:
- Separating money or assets that rightfully belong to only one spouse
- Protecting your spouse and their assets if you have debts incurred prior to the marriage
- Estate plans in the event of one spouse’s death
- Providing for and protecting the interests of children that you have from a previous marriage
- Protecting an inheritance you received prior to getting married
- Allowing each spouse to keep their income, assets, and retirement accounts separate in case the marriage ends.
When marriage is on the horizon, many people are happily in love and excited to start a new life with their partner. It is understandably difficult to discuss far off “what if” scenarios because nobody wants to contemplate divorce or death when they are about to get married. However, from a legal standpoint, this is the best time to have these discussions so you can plan for your future and protect your financial wellbeing.
If you are contemplating marriage, you need to spend some time discussing all of these factors with your soon-to-be spouse. A qualified Arizona family attorney can be an invaluable resource when you are having this conversation. Attorney Judd Nemiro has extensive family and domestic law experience in the Phoenix courts and he can guide you through the legal factors that will define your marital agreement.
What can I legally do with a prenuptial agreement in Arizona?
You have many options for dealing with your property but there are several basic requirements to draft a valid prenuptial agreement in the state of Arizona. Once the agreement is drafted and signed by the parties, it will be enforceable as soon as a legal marriage occurs. The requirements for a valid prenuptial agreement are set forth in the Arizona Uniform Premarital Agreement Act and include the following rules:
- The agreement cannot contain illegal requirements and it must not contain clauses that are against public policy. For example, it cannot in any way encourage a future divorce or exempt a spouse from future child support. Like any contract, if the agreement is illegal, a court will not enforce it.
- The agreement must be written and it must be signed by both future spouses. This ensures that each party has read and fully understands what they are getting into. In many cases, it is advisable that each of the parties has their own attorney to prevent conflicts of interest. It can be difficult for one attorney to fairly represent the different interests of two parties who, by the very nature of premarital agreements, have different goals and interests. A.R.S. § 25-202
- A prenuptial or postnuptial agreement may not set parameters for how future children will be dealt with. Under A.R.S. § 25-203 the right to child support is explicitly set aside and may not in any way be affected by a premarital agreement. In addition, the agreement cannot state that upon a future divorce, the children will live with the mother. Courts will always look for the best interest of the child, and it would be impossible to determine what the best interest will be in the future.
The basic requirements are fairly self explanatory, but it is worth your while to contact a qualified family law attorney who can guide you through the practical implications of drafting and enforcing your marital agreement. After all, an agreement is useless if you cannot enforce it.
Can we make changes to the agreement if our circumstances change?
Yes. A married couple may alter an existing agreement amongst themselves or create a wholly new agreement if one did not exist prior to the marriage. Under Arizona law, there are two basic forms of property that may belong to married persons: separate and community. Separate property may be converted to community property and community property may be converted to separate property. In other words, property that is jointly or separately owned by married persons may be divided among them as they see fit during any stage of their marriage so long as there is a properly drafted agreement.
Similar to a prenuptial agreement, a postnuptial agreement must meet certain basic criteria for fairness between the parties. Having independent legal counsel can help ensure that your interests are protected.
- There must not be any fraud, undue influence or unconscionable activity by the spouses
- The agreement must be in writing and signed by both parties
- The parties must have a full and complete understanding of the agreement they are entering into
- The agreement must be fair
Married persons may also modify or revoke an existing prenuptial agreement under A.R.S. § 25-204. The same protections for spouses must be taken into account when modifying an agreement so that both spouses are protected from abuse, fraud or unfairness.
Pre- and post- nuptial agreements are a form of contract and it is in your best interest to have experienced legal counsel guiding you through the rules and technicalities.
As my attorney, what will you do for me?
Judd Nemiro has been practicing family and domestic law since graduating from law school. He has a comprehensive understanding of the law as well as the courts in the Phoenix and Scottsdale area. He will evaluate your particular circumstances and discuss all of the options for your situation. Call today!