Creating a prenuptial agreement in Arizona can save you. Think of it this way: setting yourself (and your spouse) up for your future is a much more vital component to preparing for marriage than picking out the perfect cake and venue. Having a prenuptial agreement in place can help protect both parties in the event of an unexpected divorce.
How Does Arizona Define a Prenuptial Agreement?
While you’ve probably heard the word prenup or prenuptial before, it’s important to understand precisely what a prenuptial agreement is. Keep in mind that a prenup may also be referred to by other names, such as a premarital agreement. As the terms imply, these types of agreements must be made before marriage.
In the state of Arizona, a prenup is a contract created by a couple before marriage in which they settle issues about their assets in the event of a future divorce. While it may not be the most romantic part of any wedding planning, it’s essential for those with complex assets and property holdings, as well as those who want to protect their future livelihood. In general, the goal of a prenuptial agreement is to declare which assets should be assigned to whom before the marriage so that there are no issues or misunderstandings should the marriage later dissolve.
What Can Be Included in a Prenuptial Agreement?
Many types of assets can be addressed by a prenuptial agreement.
Some of the important asset types that should be included in a prenuptial agreement include:
- Investments and Bank Accounts — This is the most basic asset type that should be included in any premarital agreement. It’s important for those entering a marriage contract to seek premarital financial counseling to determine the ideal distribution of financial assets should the marriage end.
- Furniture and Household Items — Any valuable, tangible property that either spouse will bring into the marriage or purchase during the marriage should be addressed in a prenup.
- Businesses and Professional Practices — Businesses owned by either spouse or the couple can be protected with a prenup. Generally, businesses owned by a single spouse before the marriage are considered separate property, while co-owned businesses must be divided during divorce; however, creating a prenup enables you to set future expectations for your business should the marriage end.
- Alimony or Spousal Maintenance — Prenups can address whether either spouse should or should not receive spousal maintenance if the marriage ends. However, spouses cannot designate a specific dollar amount of spousal maintenance in a prenup.
- Vehicles – While prenuptial agreements often neglect to include vehicles, couples can decide whether to protect vehicles with a prenup.
- Debts — It is incredibly important to organize debt before marriage. Should one member die or become incapable of decision-making, it’s entirely possible that debt collectors could try to seize the remaining spouse’s assets to pay the debt. With a prenuptial agreement, both parties can shield assets from the debts of the other partner.
- Personal Property — This category can include a number of asset types, including collectibles like sports memorabilia, artwork, collections, antiques, or musical instruments. Creating a prenuptial agreement can help ensure that personal property remains yours in the event of a divorce.
- Miscellaneous Provisions — A prenuptial agreement can include other provisions, as well. These typically involve attorney’s fees in the event of a disagreement, asserting that nothing other than what has been agreed upon in the prenup has been promised and relinquishing any such assertions made against the other spouse.
Why Get a Prenuptial Agreement?
There are a great many reasons a couple should obtain a prenuptial agreement. Distinguishing community property and separate property is incredibly important during Arizona’s divorce proceedings because it helps determine how assets are distributed to the spouses. A prenuptial agreement can clarify these decisions and help protect assets from division or redistribution during the divorce. Prenups also help determine who has control over any assets within the marriage.
A prenuptial is often essential for determining whether spousal maintenance will be awarded to one spouse if a divorce occurs. It can also affect how spousal maintenance will be distributed after a divorce. Prenups may help determine how life insurance benefits will be distributed in the event of the death of either spouse and consider any wills, legal arrangements, or trusts that exist when either party enters the marriage.
Finally, not only does a prenuptial agreement protect both parties and their existing property in the event of a divorce, but it also helps reduce the impact of an expensive and drawn-out divorce by making several important decisions well in advance. Divorces can become costly very quickly, especially if they require lengthy litigation. Creating a prenuptial agreement can minimize the length of divorce proceedings.
Who Should Get a Prenuptial Agreement?
Prenup statistics say it’s getting more common. While it may seem like drafting a prenuptial agreement is the same as expressing doubt that the marriage will last, it is simply a proactive step protecting both spouses if the marriage ends.
Anyone can benefit from a prenuptial agreement, but if you fit one of these categories, creating a prenuptial may be even more beneficial:
- Either you or your spouse has substantial or complex assets
- Either you or your spouse expects to receive a substantial inheritance
- Either you or your spouse owns or co-owns a business
- Either you or your spouse has children from a prior relationship
- Either spouse holds significant debt
- One spouse has far more assets than the other
- One spouse is much older than the other
- One spouse is unable to work whether due to age, physical or mental condition, or retirement status
- One spouse is funding the education or career training of the other
How to Implement a Prenuptial Agreement in Arizona
In order to create a valid prenuptial agreement in the state of Arizona, it’s important to understand some key Arizona requirements.
Here are the most critical aspects to consider:
- A prenuptial agreement should be signed well in advance. Ideally, the spouses will create and sign the agreement well before the wedding day. It will not become valid until the marriage occurs.
- The agreement must exist in writing. A valid prenup cannot be a verbal or handshake agreement.
- The agreement must reflect reasonable community and personal property disclosures and treat both parties fairly under Arizona law. In other words, it should benefit both parties.
- Both parties must sign the agreement voluntarily and have it witnessed by a notary public.
- The agreement cannot adjust marital rights within the contract. Decisions like child support and custody made within a premarital agreement can invalidate the agreement.
To create a legally valid Arizona premarital agreement, begin with an Arizona prenuptial agreement form. A legal form enables you and your spouse to move forward with creating a prenuptial agreement without individual representation from your respective attorneys while still ensuring the above requirements have been met.
Can Prenuptial Agreements Be Modified?
While you may create many drafts of your prenuptial agreement as you discuss its terms with your spouse and/or your legal representation, once the agreement has been signed and notarized, it is a legally binding document that will be upheld by the courts unless it is declared invalid at a later date. Therefore, changing its terms after it has been signed would be considered a breach of contract.
Before you sign your agreement, you can prevent a breach of contract by adding a provision to allow changes in the future, should conditions or circumstances change. Once you and your spouse have signed the agreement and marriage occurs, it is too late to add this provision. At this point, instead of altering an existing prenuptial agreement, you must create an entirely new postnuptial agreement with the new terms. Postnuptials must meet the same validation requirements as prenuptials.
Prenuptial Agreement Mistakes
While creating a prenuptial agreement can be simple, DIY prenuptial agreements are discouraged. This is because many people make mistakes while drafting, signing, or finalizing the agreement, and prenuptial agreements that do not adhere to Arizona guidelines will not be upheld by the court. In addition, many other people make the mistake of relinquishing their ability to protect their property while creating the prenuptial agreement, which can mean the agreement is more beneficial to their partner.
Common mistakes while creating a prenuptial agreement include:
- Signing the prenuptial agreement under duress. When one spouse feels forced into signing a prenuptial agreement (or the other spouse demands compliance during the signing), the agreement is not valid. The parties should agree on the terms well in advance and sign voluntarily.
- Creating an unfair prenuptial agreement. When one spouse’s benefits from a premarital agreement so grossly outweigh the other’s that the agreement is considered unconscionable, an Arizona court will likely invalidate the agreement.
- Misrepresenting spousal assets and debts. If one spouse hides or misrepresents their assets and debts, the prenuptial agreement can be neither fair nor reasonable and will likely be invalidated.
- Creating a prenuptial agreement that addresses child support or custody. Prenuptial agreements cannot deny, modify, or pre-plan child support and child custody rights or obligations. A judge is not likely to enforce this provision.
- Drafting a spousal maintenance provision that makes the spouse eligible for state assistance. While prenuptial agreements can either waive or adjust spousal maintenance, a judge will not approve an agreement that waives spousal maintenance and shifts the responsibility for spousal support to the state.
- Signing a prenuptial agreement while intoxicated or incompetent. If you or your spouse signs the agreement while using drugs or alcohol or while determined mentally incompetent, a judge will not uphold its contents.
- Using only one spouse’s attorney to create the agreement. If you elect to use an attorney to create a prenuptial agreement for you, both spouses must procure their own attorneys to ensure fairness. Otherwise, one spouse holds a clear power advantage over the other.
Arizona Prenuptial Agreement FAQ
Prenuptial agreements are among the most common legal documents we draft.
Here are some frequently asked questions we receive regarding prenups:
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Begin Drafting a Prenuptial Agreement
While the assistance of an attorney can be extremely helpful, you may have enough understanding of your assets and knowledge about the division process to begin drafting a prenuptial agreement. Legal document services can help save you the time, stress, and money necessary to draft a prenuptial agreement with a team of attorneys. Better yet, you’ll still have the peace of mind that comes with knowing that your prenuptial agreement is being handled by professionals.
Our licensed attorneys personally draft and approve all legal documents, allowing you to secure the know-how of an attorney without the expense of a law firm. If you’d like more information about our affordable AZ prenup document services or assistance with any other legal document, contact us.
Jonathan Roeder is one of the founding partners of Reppucci & Roeder. He is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.