EXPLORING THE OPTIONS OF A PRENUP?


KNOW WHAT TO EXPECT AND WHAT IT CAN PROTECT



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YOUR EXPERIENCED FAMILY LAW ATTORNEYS

WHAT IS A PRENUPTIAL AGREEMENT?
HOW DO I GET STARTED?


Because Arizona has adopted the Uniform Premarital Agreement Act, if you are getting married in Arizona, you can make an agreement before you marry. Without a prenuptial agreement, you automatically contract to have community property laws apply to your marriage in Arizona. If you lived outside of Arizona when you married, community property laws still apply. The only way to avoid the application of community property to your marriage in Arizona is to execute an agreement.

The premarital agreement, also called a prenuptial agreement, allows you and your spouse to agree that certain assets that would normally be treated as community property or community debt are now separate property or separate debt.
Allocate property and debts in the event of divorce or death.
Protect your assets from your spouse's creditors.
Excellent for blended families and asset protection.
Protect business interests and business partners if you divorce.

Frequently Asked Questions

1

What conditions does the prenuptial agreement or premarital agreement have to meet?

Premarital agreements can only be valid if several conditions are met at the time the agreement is made, including the following:

  1. Both spouses either had full disclosure of all financial assets prior to signing of the agreement or both spouses waived, in writing, the right to that disclosure.
  2. Both spouses entered the agreement voluntarily.
  3. The court, if one spouse challenges the agreement, will not believe that the agreement is unconscionable.
2

What if you want to apply custody terms to your premarital agreement?

Premarital agreements can cover a number of terms, but one term that judges do not uphold is a term concerning later-born or even already-born children. The reason for this is that with the passage of time, the child develops and each family is unique. What you agree to now may not be realistic in three or thirteen years.
3

What if we want to apply child support terms to our prenuptial agreement?

Because courts view the child support as being the child’s money, the court will not want to uphold this term in Arizona. As with child custody, each family is so different. What if, for instance, you agree in your prenuptial agreement to a specific sum of money believing your child will have a special need, only to learn that your child is healthy and thriving after his birth? The funds you agreed to would be unrealistic or unfair to the payer and a windfall to the payee.
4

If you are already married and now you want a prenuptial agreement, is it too late to have this type of agreement apply to your marriage?

Arizona law does allow postnuptial agreements. A postnuptial agreement is much more likely to be contested after divorce.

The only consideration that a court must make to determine if a postnuptial agreement is valid is whether the agreement is fair and equitable. Because of this fairly lenient standard of review, spouses are much more likely to challenge the postnuptial agreement if they believe they are not receiving a fair share of the marital assets.
5

How does the prenuptial agreement affect my liability to creditors?

According to the Arizona Court of Appeals, premarital agreements are binding on creditors. This means that if you have a debt that is identified by a premarital agreement or prenuptial agreement, your creditors cannot pursue your spouse’s assets to collect on that debt. But the language you use in your premarital agreement or prenuptial agreement is very important and it has to be precise.
6

What if I have a debt that I want to keep separate from creditors and I have a postnuptial agreement?

The Arizona Court of Appeals has held that postnuptial agreements are not always binding on creditors. If a court believes that a postnuptial agreement was signed for the purpose of shielding your assets from creditors, or for the purpose of defrauding creditors, then the postnuptial agreement will not be found to be binding on the creditors. With any premarital agreement or postmarital agreement, it is a good idea to record a Notice of Entry of Premarital Agreement at your county recorder’s office. This will give notice to creditors of the existence of an agreement that could affect community property in a marriage.

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Peaceful Family Law was founded in 2009 with a desire to ensure the institution of family was preserved in times of conflict. Jennifer Moshier was one of the first trained collaborative law attorneys in Arizona.

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