Prenuptial Agreements In Arizona

Marriage can be one of the most impactful moments in a person’s life. Often, when two people decide to unite together as a family for what they hope will be the rest of their lives, it can make the sun seem to shine a little brighter, and the sky appear a little bluer. Still, it’s important not to let these blissful feelings prevent you from entering into a marriage without considering – and planning for – the possibilities that lie ahead.

While no one enters into a marriage intent on ending it, the reality is that it could happen at any time and for a multitude of reasons. Unfortunately, failing to plan for this possibility is a mistake many individuals make. Prenuptial agreements, however, can help protect you and your partner if your marriage ends prematurely.

At The Valley Law Group, our family law attorneys understand how important prenuptial documents can be for protecting you and your assets should your marriage end. Our team works closely with clients to review their unique situations and evaluate whether a prenuptial agreement is appropriate, which elements are most important for you, and how to ensure your prenuptial agreement is valid. We then help prepare the documents to ensure that you are legally protected as you begin your life with your new partner. If you are presented with a prenup from your partner, our team can help you review the terms of the document to be sure its contents are fair and meet the needs of both you and your partner.

Learn all you need to know about prenuptial agreements with The Valley Law Group’s guide.

What is a Prenuptial Agreement?

Prenuptial agreements, often referred to as prenups, are legal contracts agreed upon by two individuals who intend to marry. The terms of a prenup outline how individual assets will be treated should the marriage end.

While any couple can benefit from a prenup, prenups are often utilized by those who may bring a significant amount of individual assets into a marriage. When a couple is married in Arizona, their individual property should be protected from acquisition by the other at the end of the marriage, unlike community or marital property. However, without a prenup, both parties could make a legal argument as to how part of those assets became marital property during the course of the marriage. To protect this property, prenup identifies who is entitled to specific pieces of property that were acquired prior to the marriage as opposed to property acquired during the marriage.

Prenups can include any number of assets, including family heirlooms, real estate, and investments, amongst others. Because prenups are legally binding agreements, you will want to ensure you include any assets of which you hold sole ownership. By including them in a legally valid prenup, once the document is signed and notarized – and once your marriage has occurred – you have eliminated any debate over who is entitled to the property.

What does a Prenuptial Agreement Do?

While the primary intent of most prenups is to protect assets, a prenuptial agreement can also outline the rights and responsibilities of both individuals entering the marriage. When a couple establishes a prenuptial agreement, they are able to make important decisions ahead of time that would ultimately need to be decided in the event of a divorce. Because these decisions are made prior to the marriage, it can help save both time and money should the marriage end. Often, the assets protected and the decisions made in a prenuptial agreement are those that could be highly contentious, and while decisions around them could start with amicable discussions, they can often turn into frustrating arguments.

Instead, a prenup can dictate whether assets are defined as community or marital property. This is crucial because if an asset is determined to be marital property, it is owned or contributed to by both spouses and therefore, both have a claim to the asset if the marriage should end. This is not so for assets defined as individual property. A prenup can also define who has control of a particular asset during the course of the marriage.

It is crucial to note that a prenuptial agreement must be finalized prior to the legal beginning of the marriage, which is considered to be the moment that the couple exchanged vows in a wedding ceremony. If, for any reason, the couple calls off the wedding, the agreement becomes null and void.

Should You Consider a Prenuptial Agreement?

Prenups offer many benefits, but many people fail to consider them. Often, this is due to the reinforcement of the stigma that a prenup is a sign of distrust between partners. As a result, people may not take into account the potential of what could happen in a divorce, the implications that occur if one spouse encounters a disability, or even what will happen if one spouse wins the lottery.

If any of the following apply to you, you may wish to consider a prenuptial agreement:

• One or both spouses have children from a previous relationship.
• There is a significant difference in wealth prior to the marriage.
• Significant assets are involved, which are owned by one or both parties.
• There is a significant difference in age between both parties.
• One individual has already retired.
• One or both parties own a business, either independently or jointly.
• One spouse will help to support the other as they pursue a degree.
• One or both parties anticipate a significant inheritance.

Prenups are more common amongst older couples, as they are more established and often have more experiences that require considerations in a later-in-life marriage. However, prenuptial agreements can be beneficial for all types of couples.

Assets Covered by a Prenuptial Agreement

Deciding which assets to include in a prenuptial agreement is a matter of determining which assets you would like to protect or control within the marriage.

Assets and stipulations that you may want to consider as a part of your prenuptial agreement may include:

• Bank holdings and investments- This is often the most common form of asset designated for coverage in a prenuptial agreement. Some couples experience uneven financial holdings when one spouse has substantial assets in their bank accounts, stock ownership, long-term investments, and more. In these situations, they may wish to protect those holdings, as they should not be considered marital property. Discussing options with your attorney and a financial advisor can help you understand if your assets should be included in a prenuptial agreement.
• Household items, including furniture- Any furniture or household goods that are considered of value to you may need to be included in the prenuptial agreement. This can include an agreement that covers how furniture or other goods acquired during the marriage are to be divided in the event of a divorce.
• Business ownership- In the event that one or both spouses individually or jointly own a business prior to the marriage, they may want to ensure the business is protected in the event of a divorce. A prenup can set the terms of ownership, the stipulations of the ownership, and what percentage of equity each spouse is entitled to should a divorce occur.
• Personal property- Personal property can include essentially any piece of property the spouses don’t wish to become community property during a divorce. Often, this covers valuable collections, artwork, antiques, and any other personal property that one spouse feels is of financial value. This can also cover property that holds emotional meaning.
• Spousal maintenance- Prenups may not designate a specific dollar amount to be provided as spousal maintenance in the event of a divorce. However, they can be used to waive or otherwise address the terms of spousal maintenance, including duration.

• Vehicles- This type of asset is rarely included in a prenup, but not because it isn’t allowed. Most people consider their vehicle a temporary asset that may change and, therefore, do not include it. However, if you or your spouse owns a rare vehicle, a family heirloom auto, a collection, or simply wants to put a stipulation in place based on the terms of the marriage moving forward, vehicles can be protected in a prenup.
• Debts- Prenups do not only cover the positive value of assets but also the debts each spouse brings into the marriage. In a divorce, debts are subject to division, just like assets. However, if you are entering into a marriage where one spouse has a significantly larger amount of debt than the other, then the spouse with the smaller debt may wish to protect themselves from inheriting the other debt. Similarly, if spouses anticipate taking on significant debt – such as student loan debt – during the course of the marriage, they may consider protecting the other spouse with a prenuptial agreement.
• Other provisions- It is important to recognize that a prenup can cover more than the assets of an individual. It can also include any provisions that may arise in the divorce process. This could include who is responsible for attorney fees if a disagreement should arise when carrying out the terms of the prenuptial agreement. Other provisions include terms that may relate to children either spouse may have from a previous marriage, impacts of the prenup on potential employer benefits one spouse may receive, and even a release from any claims one party may make toward the other.

These are just some of the inclusions of a prenuptial agreement. The skilled family law attorneys at The Valley Law Group can further counsel you on the specifics of your situation.

How Do You Get a Prenuptial Agreement?

To obtain a prenuptial agreement, contact a family attorney to schedule a prenuptial agreement consultation. Both parties will need to make a full financial disclosure and outline the desired terms of the agreement. The prenuptial agreement can then be drafted on paper and signed by both parties. The signed document is then sent with the application to the clerk of court in your county of residence. For the prenup to be valid, these steps must be executed prior to the marriage.

An important note is that prenuptial agreements must be fair to both parties and must only set forth terms for allowable issues. For example, a prenup cannot require a spouse to waive rights like child support. It can only be used to define terms for marital property and how it is distributed.

In addition, before submitting your application or signing your prenup, you and your soon-to-be fiance should each have an attorney independently review the documents.

Requirements for a Valid Prenuptial Agreement

Arizona has several requirements that must be met in order for a prenuptial agreement to be considered valid and enforceable.

These requirements include:

• The agreement should be signed in advance of the wedding. While it is validated on the wedding day, signing well in advance of that time allows both parties to not only review the document but ensure they fully agree with its terms.
• The agreement cannot be valid if the parties agree in any way other than a signature. That means they cannot have a verbal agreement or a handshake. The specific terms must be in writing.
• The agreement must be fair to both parties involved. It must be specific on what is considered marital property and what is considered personal property. An attorney will review the terms on your behalf to ensure that it is fair in the eyes of the law. Should you need to enforce the prenup during a divorce, the Arizona Family Court will ensure its terms are valid.
• Both individuals must sign the document in the presence of a notary and of their own voluntary will. Any agreement signed under duress or by means of fraud will not be considered valid.
• The prenup may not include any stipulations on marital rights, only marital property. This means that terms such as child custody or child support may not be included in the contract.

Enforcing a Prenuptial Agreement?

If a prenuptial agreement is legally sound and valid under Arizona law, it is a legally binding document that became effective at the time of the marriage. In an uncontested divorce, where both spouses agree to the divorce and choose not to litigate its terms, the spouses will simply agree to follow the prenuptial agreement. If the divorce is contested, the court will determine that the prenup should be enforced during litigation.

The first step in ensuring that your prenuptial agreement is legally sound is to work with a qualified and experienced attorney who can help you draft the contract. Working on a prenuptial agreement without the help of an attorney can leave you vulnerable to mistakes or inequitable terms.

In the event of a divorce, if one spouse feels the document does not follow the proper legal procedures or is unfair, they could challenge the validity of the prenuptial agreement. If a challenge is brought on a prenuptial agreement, most courts will begin by looking at the circumstances surrounding the creation of the document. A successful challenge will invalidate the document and eliminate its terms.

Can You Change a Prenuptial Agreement? After You’re Married?

Prenuptial agreements can be modified up until the time it is signed and notarized. That means you can alter any drafts of the agreement along the way. However, once it is signed and notarized, the only way to modify the agreement before marriage is to create a new agreement.

After you are married, if you and your spouse determine that you would like to alter your prenup, you must go through the process of filing a postnuptial agreement that specifically overrules the details and agreements made in your prenuptial agreement. If you choose to file a postnuptial agreement, understand that it must meet the same validation requirements as a prenuptial agreement.

Common Prenuptial Agreement Mistakes and How to Avoid Them

Mistakes can occur in just about anything, and that is true for prenups as well. When creating a prenup, you can avoid costly mistakes by working with an attorney.

Common mistakes to watch out for include:

• Signing under duress- If you or your spouse feel forced to sign your agreement or were presented with the document under fraudulent parameters, your prenup could be voided. This stipulation also includes if the document is signed while under the influence of any drugs or while intoxicated. Both parties need to agree to the terms and sign the document willingly, voluntarily, and while of sound mind and body.
• The agreement is unfair- Even though you and your spouse are creating the terms by which the prenup will exist, it must still be legally fair to both parties. If the prenup provides an outcome that is significantly lopsided, the agreement could be voided.
• Asset and debt misrepresentation- Just as in a divorce, one spouse may feel it necessary to hide certain information from the other. However, failing to reveal all assets and debts could negate the agreement.
• Including marital rights matters- A prenup can only speak to marital property and not marital rights. For example, if the prenup includes provisions regarding child support or child custody for a child the couple shares, then it could negate the agreement.
• Improper spousal maintenance provisions- While a prenup can set forth terms that include an agreement one spouse could receive spousal maintenance, it cannot stipulate the amount they should receive. Similarly, an agreement cannot be made to falsify spousal maintenance terms so that one spouse can retain some type of government assistance.
• Incompetence- As stated, the prenup needs to be signed by both parties while they are of sound mind and body. If one spouse is deemed incompetent, then they are not of reasonable capacity to sign the document.
• Using only one attorney- Both parties involved in the prenup must have independent legal representation. This means that the prenup must be reviewed by both attorneys in order to ensure fairness and that the other requirements for validation are met.

While these are not the only mistakes made in the creation of a prenuptial agreement, they do represent the most common. If mistakes are made in a prenuptial agreement, then it can be challenged in court by either party, which negates the purpose of the agreement in the first place. Ensuring you do your due diligence in the creation of the contract can save you time and money later.

Prenuptial Agreement FAQs

Prenuptial agreements are designed to identify individual rights to marital property in the event that the marriage is dissolved or some other life-changing circumstance arises. It is a couple’s agreement prior to marriage, and through this agreement, couples have the necessary conversations and negotiations that would normally occur at the time of divorce. The agreement is signed and notarized prior to the marriage and executed on the day vows are exchanged in a religious or civil ceremony.

Prenuptial agreements can be modified or changed up until the time they are signed and notarized. In the event that a couple wishes to modify the agreement after this time, they must form a new agreement. If they are already married and wish to alter the terms, they must then create a postnuptial agreement and ensure it meets all the validity requirements.

To ensure a prenuptial agreement is valid, both parties must have signed a physical prenuptial agreement document in the presence of a witness and a notary. Additionally, they must have had the document independently reviewed by an attorney to ensure fairness to both parties and that no improper terms exist, and they must reveal all of their assets and debts prior to signing. Finally, both parties must have agreed to the document and all its terms voluntarily.

Prenuptial agreements are fully enforceable as long as both parties involved meet all of the validity requirements. If there are discrepancies or if either party fails to provide their full financial information, the agreement can be challenged. In an uncontested divorce, spouses typically agree to follow the terms of the prenup. In a contested divorce that proceeds to litigation, the court will likely need to enforce the terms.

Choosing whether to create a prenuptial agreement is a matter of preference and circumstance. For many individuals, a prenup is a way to protect their financial interests that were accumulated prior to marriage. For others, it could be to protect a business venture or family wealth. If you feel you are bringing a substantial amount of wealth into a marriage, anticipate a large inheritance, or have a significantly different income than your spouse, you should consider a prenuptial agreement. However, a prenuptial agreement can suitably protect couples of any financial standing.

The cost of a prenuptial agreement is dependent on the circumstances surrounding the creation of your agreement and the attorney you choose to hire. If you and your partner have extensive assets and debts to go through in order to reach agreements, the negotiation and drafting process can take more time. During this time, your attorney is actively preparing and reviewing the contract.

Because family law attorneys also come with different levels of experience, their costs will vary. Generally, a family law attorney will cost between $200 and $500 per hour. It is best to ask your attorney about costs upfront.

The easiest and quickest way to obtain a prenuptial agreement in Arizona is to have an experienced and qualified family law attorney review your circumstances, discuss the options available, and prepare the documents. Working with an attorney will ensure that mistakes are avoided and your prenup meets all the validity qualifications. While your attorney will help prepare the document, your partner’s attorney will review it to ensure their client understands the agreement and that it is fair for both sides.

Signing a prenuptial agreement occurs before the wedding but after both parties have had the document reviewed by their attorney. The prenuptial agreement must be voluntarily signed by both parties and notarized. Once the agreement is signed, it cannot be changed without drafting a new agreement.

The more time you allow before your wedding date to draft and finalize the prenuptial agreement, the better. We recommend that you try to finalize the document three to six months in advance. This allows plenty of time for the terms of the document to be negotiated, for attorneys to review and make suggestions, and for both parties to sign.

Technically, you can create the draft of your agreement independently of legal representation; however, this is not recommended, as it is a legally binding document that could significantly impact your financial standing in the event of a divorce. Further, if there are any mistakes, falsehoods, or unallowable or unfair terms, the document could later be challenged. While outlining the terms on your own may help you save money in the beginning, it could cost you more later when the document must be litigated in court.