Legal agreements between the betrothed and existing spouses can be delicate matters. At Garnice Law PLLC, we are well-versed in the many issues that may arise when dealing with prenuptial and postnuptial agreements. Whether drafting, negotiating or litigating the validity and enforceability of such agreements, we are thoroughly apprised and up-to-date concerning any complexities that may arise during the course of such representation.
A prenuptial agreement is a private agreement between a couple contemplating marriage. The couple generally arranges, in advance, financial matters in the event of death or divorce. “Lifestyle” or non-financial topics also may be included. A valid and enforceable prenuptial agreement overrides and preempts Arizona state family and probate law that otherwise would apply.
Prenuptial agreements are valid in Arizona pursuant to statute. Arizona case law is sufficiently developed that a well-drafted prenuptial agreement, properly prepared by counsel for both parties, can withstand the toughest scrutiny.
These agreements are contracts between spouses. They are similar to prenuptial agreements except they are signed during marriage. They are dissimilar to separation agreements, because they are not signed in contemplation of a separation or a divorce. They are entered into in contemplation of an ongoing, viable marriage, and must be carefully drafted to ensure validity and enforceability.
Increasingly today, non-married couples are entering into cohabitation or living together agreements. A cohabitation agreement typically tries to establish contractually for the parties the rights and obligations that by custom, statute and prenuptial agreements accrue to married people, especially with regard to the division of real property and other assets.
There are obvious pros and cons to entering into premarital agreements. Here is just some of the ways that entering into an agreement can affect you.
A premarital agreement can protect the inheritance rights of children and grandchildren from a previous marriage.
If you have your own business or professional practice, a premarital agreement can protect that interest so that the business or practice is not divided and subject to the control or involvement of your former spouse upon divorce.
If one spouse has significantly more debt than the other, a premarital agreement can protect the debt-free spouse from having to assume the obligations of the other. If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.
A premarital agreement can address more than the financial aspects of marriage, and can cover any of the details of decision-making and responsibility sharing to which the parties agree in advance.
A premarital agreement can limit the amount of spousal support that one spouse will have to pay the other upon divorce.
A premarital agreement can protect the financial interests of older persons, persons who are entering into second or subsequent marriages, and persons with substantial wealth.
The agreement may require you to give up your right to inherit from your spouse’s estate when he or she dies. Under Arizona law, you are entitled to a portion of the estate even if your spouse does not include such a provision in his or her will.
If you contribute to the continuing success and growth of your spouse’s business or professional practice by entertaining clients and taking care of the home, etc., thus allowing him or her to focus on professional endeavors, you may not be entitled to claim a share of the increase in value if you agree otherwise in a premarital agreement. Under Arizona laws, this increase in value may be considered divisible community property.
Starting a relationship with a contract that sets forth the particulars of what will happen upon death or divorce can engender a sense of lack of trust.
As mentioned above, a contract can take the wind out of your emotional sails.
It can be difficult to project into the future about how potential issues should be handled, and what may seem like an inconsequential compromise in the romantic premarital period may seem more monumental and burdensome in reality.
A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or she has become accustomed during the marriage if the agreement substantially limits the amount of spousal support to which that spouse is entitled.
In the “honeymoon” stage of a relationship, one spouse may agree to terms that are not in his or her best interests because he or she is “too in love” to be concerned about the financial aspects and can’t imagine the union coming to an untimely end.
Whether you want to embark on the process of creating such an agreement or just want to find out more about it and how it could potentially affect you, contact us or call us at (480) 556-5800.
Prenuptial & Postnuptial Agreement FAQs
- Doesn’t a prenuptial agreement mean the parties don’t trust each other?
- Do courts uphold prenuptial agreements?
- Who uses prenuptial agreements?
- What is a prenuptial agreement?
- How does a judge decide whether to uphold a prenuptial agreement?
Q: Doesn’t a prenuptial agreement mean the parties don’t trust each other?
Maybe, but a prenuptial agreement usually is grounded in realism rather than a lack of trust. For older couples who are marrying a second time, the parties simply want to protect their children. Younger couples may simply feel that a prenuptial will save expense later if the marriage does not work out.
Q: Do courts uphold prenuptial agreements?
The validity of a prenuptial agreement depends upon certain factors. However, they are generally upheld within the State of Arizona. In general, the closer to the wedding date the prenuptial was signed, the greater than danger that it will not be upheld. If one side was represented by a lawyer and the other was not, or both sides were represented by the same lawyer, either party can argue he or she did not understand what was signed, and the prenuptial agreement may not be valid. If the parties failed to disclose their assets, the prenuptial can be attacked on that basis. The greater the number of these factors in one case, the greater the chances a court may not uphold it.
Finally, a court may ignore provisions concerning custody and child support in favor of the standards of what is in the best interest of the child.
Q: Who uses prenuptial agreements?
In the past, prenuptial agreements were often favored by individuals who were marrying for the second time, and had assets from a previous marriage which they wanted to preserve for their children from that marriage. Thus, the couples were typically older and had a significant amount of assets.
Increasingly, probably because many people are marrying later for the first time, prenuptial agreements are also being used by individuals marrying for the first time who have been in the work force for a period of time and have accumulated assets which they do not want to lose in the event of a divorce. In addition, people who have friends who have been “burnt” by divorce may want prenuptial agreements which limit not only the distribution of assets, but also the amount and duration of support which one party can receive from the other.
Q: What is a prenuptial agreement?
A prenuptial agreement is a binding agreement entered into prior to the marriage in which the parties, in however much detail they wish, set forth what will happen to their income and assets in the event the marriage ends in death, divorce, or separation.
Q: How does a judge decide whether to uphold a prenuptial agreement?
A judge may conduct a trial on the issue, or may read sworn statements concerning the agreement. Decisions are based on which side the judge believes, as well as a consideration of the applicable statutes and relevant case law.