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Prenuptial Agreements in Arizona (What You Should Know)
No one gets married intending to divorce. However, no one can be certain of what the future holds, and any number of factors can affect a marriage to the point where divorce is the only solution.
It’s important to protect yourself and your assets from the beginning even though you believe you will be with your spouse forever. Having a prenuptial agreement can shield your assets, define financial obligations following the divorce, protect you from acquiring unwanted debt, and more.
Read on to learn more about prenuptial agreements in Arizona and how they may benefit you and your future spouse. For specific advice regarding your situation, reach out to an experienced family law attorney near you.
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What Is a Prenuptial Agreement in Arizona?
A prenuptial agreement can be known as many things: a premarital agreement, an antenuptial agreement, or simply as a “prenup.” A prenup is defined as an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage. A prenuptial agreement in Arizona, in short, is not much different than many other contracts we enter into on a daily basis. The purpose of a prenup is to define the rights and responsibilities of the parties during and after the parties’ marriage.
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Prenuptial Agreement Statistics
According to the American Psychological Association, about 40 to 50 percent of married couples in the United States divorce with the divorce rate for subsequent marriages becoming even higher. However, the rate of couples who get a prenuptial agreement prior to marriage is comparatively low. Although the popularity of prenups has risen over the years, only around 15% of soon to be newlyweds sign a prenup before saying, “I do.”
The most common reasoning behind not getting a prenup seems to be that people either cannot or do not imagine a scenario where their marriage could possibly fail. Unfortunately, many people come out worse after divorce because they didn’t protect themselves properly. They may relinguish their fair share of marital property or unjustly take on the other spouse’s debts or financial obligations.
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Why You May Need a Premarital Agreement
There are several reasons why couples choose to create a prenuptial agreement:
- Protection of separate property: If you have significant assets, such as a business, real estate, or investments, a prenup can ensure that these assets remain separate property in the event of a divorce.
- Clarification of financial responsibilities: A prenup can outline each spouse’s financial responsibilities during the marriage, such as how bills will be paid and how joint accounts will be managed.
- Debt protection: If one spouse has significant debt, a prenup can shield the other spouse from being held responsible for that pre-marital debt in the event of a divorce.
- Inheritance protection: A prenup can ensure that family heirlooms or inheritances remain with the intended beneficiaries.
- Spousal support: A prenup can establish the terms of spousal support, including the amount and duration of payments.
You could have other reasons for wanting a prenup, and you should discuss your case with an experienced family law attorney in your area.
Who Should Consider a Prenuptial Agreement in Arizona?
Generally, most people should at least consider using a prenuptial agreement in Arizona prior to getting married. This is especially true if:
- Either party has substantial assets
- Either party has any business interests or is about to start a business
- Either party is bringing significant amounts of debt into the marriage
- Either party is retired or getting ready to retire
- Either party has significant wealth
- Either party may wish to receive spousal maintenance
- Either party has personal property they want to shield from property division
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What Makes a Prenuptial Agreement in Arizona Valid or Enforceable?
To be valid and enforceable, a premarital agreement in Arizona must meet the following criteria:
- Written agreement: The prenup must be in writing and signed by both parties.
- Voluntary: Both parties must enter into the agreement voluntarily, without coercion or duress.
- Full disclosure: Both parties must fully disclose their assets, debts, and income.
- Fair and reasonable: The agreement must be fair and reasonable at the time it is signed. If the agreement is found to be unconscionable (extremely unfair), it may not be enforced.
- Timing: Both parties should sign the prenup well in advance of the wedding to avoid any appearance of coercion. A prenup becomes effective once the parties are married.
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What You Can't Include in a Prenup in Arizona
While prenuptial agreements can cover a wide range of financial matters, there are some things that cannot be included:
- Child custody and support: Prenups cannot dictate child custody or child support arrangements. These matters must be decided based on the best interests of the children at the time of the divorce.
- Illegal provisions: A prenup cannot include any provisions that are illegal or encourage illegal activity.
- Personal matters: Non-financial personal matters, such as the division of household chores or the frequency of intimate relations, cannot be included in a prenup.
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What Can a Prenuptial Agreement in Arizona do?
Arizona is a community property state, meaning that all property acquired by either party during the marriage is the community property of the parties unless a statutory exception applies. This point about community property is important because a prenuptial agreement can define the rights and responsibilities of the spouses both during the marriage and in a divorce.
For example, if there is no prenup, any income earned during the marriage will be considered community property by default. Likewise, any contributions to a retirement account would likely be considered community property. The same would hold true for any debt incurred and for properties or assets purchased during the marriage.
However, if the couple has a prenuptial agreement in Arizona, they can dictate what is community property and what is their personal and separate property.
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How Can I Enforce a Prenuptial agreement in Arizona?
If a couple decides to divorce, the court will review the prenuptial agreement to ensure that it’s valid. If the court finds the prenup valid, it will enforce it according to its terms. If one spouse challenges the validity of the prenup, the court will consider factors such as whether there was full disclosure of assets, whether both parties had independent legal representation, and whether the agreement is fair and reasonable.
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How an Attorney Can Help You with a Prenup in Arizona
Creating a prenuptial agreement can be a complex process, and it’s essential to have experienced legal guidance to protect your rights and interests. At BTL Family Law PLC, our attorneys can help you:
- Draft a comprehensive agreement: We’ll work with you to create a prenuptial agreement that covers all necessary financial matters and meets the legal requirements for validity.
- Review an existing agreement: If you’ve been presented with a prenup, we can review the agreement to ensure that it is fair and reasonable and advise you on any potential issues.
- Negotiate terms: If you and your future spouse have differing opinions on the terms of the prenup, we can help you negotiate a compromise that works for both parties.
- Enforce the agreement: In the event of a divorce, we’ll work to ensure that the prenuptial agreement is enforced according to its terms.
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Arizona Prenuptial Agreements: Frequently Asked Questions
Q: Can a prenup be modified after marriage?
A: Yes, a prenuptial agreement can be modified after marriage, but only if both parties agree to the changes in writing. This is known as a postnuptial agreement.
Q: What happens if a prenup is found to be invalid?
A: If a prenuptial agreement is found to be invalid, the court will distribute the couple’s assets and debts according to Arizona’s community property laws. This means that any property acquired during the marriage will be divided equally between the spouses.
Q: How much does it cost to create a prenup?
A: The cost of creating a prenuptial agreement varies depending on the complexity of the couple’s financial situation and the attorney’s fees.
Q: Can a prenup protect future income and assets?
A: Yes, a prenuptial agreement can address how future income and assets will be treated in the event of a divorce. This can include things like retirement accounts, stock options, and business interests.
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Take Control and Protect Your Future
The lawyers at BTL Family Law know that choosing the right divorce attorney is a personal matter. This is why you will never feel any pressure during your consultation. We are here to answer your questions, discuss your options, help you understand your rights, and, if we represent you in your divorce, our lawyers will guide you through every step of the process as efficiently as possible. We work to keep costs low so that you can start this new chapter of your life in the best position possible.
Contact us today for a confidential consultation and learn how we can help you with any prenuptial agreement issues you have in Arizona.