Understanding Postnuptial Agreements in Arizona

Postnuptial agreements in Arizona, like prenuptial agreements, exist to protect both parties in the event of a later divorce. Before many Arizona couples get married, they sign a prenuptial agreement to protect themselves—and one another—financially in the event of a divorce. A prenuptial agreement protects the individual assets each had before they married and can establish certain terms should a divorce occur. However, not every couple establishes a prenuptial agreement and may gain assets after marriage that were not subject to the premarital agreement.

However, creating a postnuptial agreement without the help of an attorney can be challenging. Making sure that the agreement is fair to both parties involved is the primary objective, so the agreement will be upheld in court should a divorce occur.

What Are Postnuptial Agreements?

A postnuptial agreement is a legal contract between a married couple that outlines how their assets will be divided in the event of a divorce. Like a prenuptial agreement, a postnuptial agreement identifies the assets each party owns and outlines their division should divorce occur in the future. However, while postnuptial agreements cover much of the same ground as prenuptial or antenuptial agreements, the latter is signed before the marriage ceremony takes place. Postnuptial agreements can be signed at any time after the marriage takes place.

A postnuptial agreement can cover financial matters, such as property division and spousal support, in the event of a divorce. It can also be used to establish ground rules in terms of finances for the marriage.

There are many reasons couples may choose to enter into a postnuptial agreement. For example, one spouse may have acquired significantly more assets than the other after the couple married. Another common reason for a postnuptial agreement is that one spouse receives an inheritance after the couple is married, and they wish to protect these assets in the event of a divorce. Additionally, couples who have been married for several years may decide to sign a postnuptial agreement to avoid potential disagreements about asset division should there be problems in the future.

It is important to note that postnuptial agreements are not just for wealthy couples. All marriages are eligible for a postnuptial agreement, and any couple may choose to create one if they so desire. While these forms of legal documents are straightforward enough, it is recommended that couples seek legal counsel before drafting a postnuptial agreement, as there are certain legal requirements that must be met for the agreement to be valid. Having an attorney also protects both parties from taking advantage of the other with an agreement that is cleverly written to appear fair enough to hold up in court but turns out to be one-sided.

How Can You Create a Postnuptial Agreement in Arizona?

There are a few things you should keep in mind when planning a postnuptial agreement to ensure it is fair for both parties.
An experienced attorney can help you navigate each of the considerations listed above so you can formulate a valid postnuptial agreement.

Preparing for a Postnuptial Agreement

The preliminary phases of postnuptial planning are the most tedious but also the most important. You and your spouse should use this time to decide which asset types you want to cover in the agreement. You will also need to gather all relevant financial information. This includes things like bank account statements, investment accounts, and property ownership documents. Once you have this information, you can begin to draft the agreement with the help of your attorney.

It is important to remember that fairness is relative. What may seem fair to one spouse may seem unfair to the other, especially if one spouse retains individual assets that give them financial advantages over the other.

There may be some disagreement among couples during this stage, so to ensure a healthy and productive discussion, consider these general principles that can help guide you in creating an agreement that is fair for both parties involved.

Take the time to consider these factors and craft an agreement that is fair for both parties involved. Many couples seek the help of an attorney to facilitate the discussion of postnuptial agreement terms, and it is perfectly normal to do so.

Postnuptial Agreements and Arizona’s Community Property Statute

It is especially important to request attorney assistance with creating your postnuptial agreement because Arizona is a community property state. This means that any asset purchased, acquired, or earned during a marriage, regardless of who paid for it, who uses it, or whose name is on the title, is considered marital property. All marital property is divided equitably during the property division stage of a divorce.

Thus, in attempting to divide assets prematurely in the event of a potential future divorce, care should be taken to write an agreement that will be deemed fair in the court’s eyes. If all goes well, in the event of a divorce, your contract will be upheld by the court. You and your spouse will achieve a fair distribution of assets without the need for extensive litigation.

What Happens if a Postnuptial Agreement Is Not Followed?

If a postnuptial agreement is not followed by either party after divorce or separation occurs, the court may not enforce the agreement. Because a postnuptial agreement is created after the marriage occurs, they are often more difficult to enforce. Postnuptial address assets that at this point may have become marital assets, as well as separate assets. As a result, depending on how much time has passed since the agreement was signed, circumstances may have changed significantly.

If either party disagrees with the postnuptial agreement by the time the marriage ends and disputes the agreement during divorce, the court must determine whether its terms are valid and whether to enforce the agreement. In many circumstances, the court may choose to enforce some portions of a prenuptial agreement but not others. If one party does not adhere to a postnuptial agreement, the court’s decision to uphold or invalidate the agreement will depend on whether circumstances have changed since it was created, whether the agreement was unfair, or whether the person simply wishes to renege on the contract.

Is There an Arizona Postnuptial Agreement Statute?

While Arizona does not have any written statutes regarding postnuptial law, Arizona courts do recognize these agreements as valid by virtue of precedent cases. Furthermore, postnuptial agreements are written in the hopes that the agreement made will enable the couple to settle the terms of their divorce outside of court. This means many postnuptial agreements never have to see a judge or face a court ruling.

Both prenuptial agreements and postnuptial agreements enable the couple to make decisions now rather than in the future when divorce looms. A solid postnuptial agreement signed now can help you achieve an uncontested divorce later, regardless of the lack of an Arizona statute dictating the terms of its enforcement. An uncontested divorce is cheaper, easier, faster, less stressful, and less hurtful than a divorce with drawn-out litigation.

What Should You Avoid Including in a Postnuptial Agreement?

There are many things that will negate the legitimacy of a postnuptial agreement. For this reason, you should employ the aid of an attorney while drafting your agreement, so you can avoid making mistakes like the ones listed below.

A postnuptial agreement should not include statements governing the following conditions:

If any of the above terms are included in a postnuptial agreement, the court can refuse to uphold the agreement. In some cases, the court may choose to enforce only certain parts of the agreement. For example, if the agreement was fair and equitable at the time it was made, but one spouse has since become financially disadvantaged, the court may only enforce the provisions regarding property division.

How Can Postnuptial Agreements Benefit You?

Postnuptial agreements are created because, if done well, they are beneficial to both spouses involved. Benefits include the following.

How Can Children Be Affected by Postnuptial Agreements?

Family matters like child custody and child support cannot be determined in a postnuptial agreement. These must be determined in Arizona family court at the time of divorce. However, postnuptial agreements can still affect children in multiple ways. For this reason, if children are involved, it is extremely important to consider their well-being when drafting a postnuptial agreement.

First, the division of property should not leave children without necessary resources like food, clothing, and other resources. Therefore, although your postnuptial agreement should not directly delineate child support, take care to make sure your agreement does not deprive them of adequate financial support. Drafting a fair and equitable postnuptial agreement can help you ensure your children are properly cared for regardless of the parenting time allotted to each parent.

In addition, if one spouse has children from another marriage, a postnuptial agreement can help to protect assets and inheritances belonging to their parent. In this way, postnuptial agreements can preserve existing children’s rights to inherit these assets if their parent should pass away during the marriage.

It is important to note that even if the court does not enforce your postnuptial agreement, it can still be used as evidence in divorce proceedings. Even though the postnuptial agreement will not necessarily define family matters, it could be useful in determining them. In other words, if there are any disputed issues in family court, such as custody or child support, the court may consider the terms of the agreement when making its decision. While this doesn’t mean the agreement is enforced, it could still be useful where children are concerned.

Drafting a Postnuptial Agreement?

A postnuptial agreement can be a useful tool in any marriage, even if you do not anticipate your marriage ending in divorce. However, before you and your spouse draft and sign a postnuptial agreement, you should consult with an attorney to ensure that it is valid and enforceable by Arizona Family Court.