There is no question that a prenup is an often discussed topic in popular culture. The term is used frequently in songs, social media, and in television and movies. However, according to some authorities, only about 5-10% of society actually implement a prenuptial agreement prior to marriage. There are numerous reasons why individuals would not implement or even consider a prenuptial agreement in Arizona. The most common reasoning seems to be that people either cannot or do not imagine a scenario where their marriage could possibly fail.
This line of thinking, while virtuous, defies statistical odds. In fact, 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. With this in mind, one may want to seriously consider protecting their assets and property prior to entering into a marriage.
Defining 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.
What makes a prenuptial agreement in Arizona valid or enforceable?
To be valid and enforceable, a premarital agreement must be in writing and signed by both parties. A prenup becomes effective at the time in which the parties become married. But there are factors that may affect the validity of a prenuptial agreement in Arizona, including:
- whether the agreement is unconscionable
- whether the agreement was voluntarily executed
- where there was fair and reasonable disclosure of both assets and financial obligations prior to the execution of the agreement
- whether a person actually had adequate knowledge of the property or liabilities of the other party
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 the event of 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.
But, if the parties have a prenuptial agreement in Arizona, the parties can dictate what is to be considered as community property and what can be considered as their respective sole and separate property.
Who should consider a prenuptial agreement in Arizona?
Generally, most people should at least consider using a prenuptial agreement in Arizona prior to becoming married. This is especially true if:
- either party has substantial assets
- either party owns an interest in a business
- either party 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 generally has significant wealth
Obtaining a prenuptial agreement in Arizona?
You are probably wondering at this point whether you can draft your own prenuptial agreement. The answer is yes, but…. The “but” comes into play because the prenuptial agreement, like any other legally binding agreement, must be drafted with extreme care. This is true because if the document is poorly drafted, it may be ambiguous or worse, be unenforceable for myriad reasons, including:
- the terms are unconscionable
- the other party did not sign the agreement
- there was not adequate disclosure of assets and liabilities prior to signing the agreement
- that the terms of the agreement are contrary to applicable law or public policy
A family law attorney with experience, however, will be able to draft a prenuptial agreement to avoid many of the pitfalls that commonly occur when people draft their own agreements. This is important because any document should be drafted in anticipation of being challenged in the courts.