Postnuptial agreements in Arizona
When you get married, almost every aspect of your life becomes shared with your spouse. As a result, a great deal of change can occur. Because of this, many people decide to sign prenuptial and postnuptial agreements. These legal arrangements can help to create boundaries between the various rights and assets of each spouse involved.
In recent years, postnups have become increasingly popular, especially here in Arizona, so that new couples can outline their individual assets and boundaries in case they end up divorcing. Here’s what you need to know about a postnuptial agreement in Arizona.
What Is a Postnuptial Agreement?
Postnuptial agreements are legal arrangements that are created by a couple after they get married. These written agreements can outline a variety of boundaries as well as assign ownership of assets and property. Postnuptial agreements are often created so that, in the event of a divorce or separation, each spouse can keep the important assets they may have had before the marriage.
Postnups are important because if a divorce or separation between spouses were to occur, the court is responsible for dividing all property and assets as it sees fit. With a postnup, if both spouses still agree to the terms that were created, your assets will be divided how you outlined in the document. Thus, postnups give you and your spouse advance control over your own property, should divorce occur.
Postnups Vs. Prenups in Arizona
Most people know of or have at least heard of the term “prenup” before. A prenup, otherwise known as a prenuptial agreement, is very similar to a postnup. Both arrangements are legal agreements that can create a plan and clear boundaries for assets if a divorce occurs at some point. The major difference, of course, is that prenuptial agreements are made before the marriage, while postnuptial agreements are made after marriage.
The other important difference between prenups and postnups is that prenups are often easier to enforce, especially in certain situations. Because postnuptial agreements are created after the marriage takes place, they are like other legal contracts in that they are frequently subject to reconsideration by the court if circumstances have changed. Prenuptial agreements are both legally binding and considered established law in Arizona, meaning they can be more strictly enforced when a divorce occurs, even if there is a dispute.
What Is Covered in a Postnuptial Agreement?
Like prenups, a postnup outlines the different assets spouses own and can create parameters that dictate what happens to them when a divorce occurs. Some of the most common areas you might see covered in a postnuptial agreement include:
Property and Asset Division
After a marriage, especially if it is not their first, many people feel more comfortable creating a legal document that identifies their important and expensive assets. This way, in the event of a separation or divorce, they can still ensure they get to keep what they already had before the marriage. A postnuptial agreement can not only identify ownership of assets, but it can dictate how they are divided after a divorce as well.
Financial Assets / Debt Division
A postnup can also outline the various financial assets of each spouse, such as their income or retirement fund, and create a guide for how they are divided in the case of separation. In divorces without prenups or postnups, a spouse that makes more money can be subject to an unfair division of assets, especially if the other spouse is pursuing those assets. Your prenup can also examine how debt would be divided if you and your spouse were to separate, including mortgage payments and credit card debt.
Alimony (Spousal Support)
Alimony, commonly known as spousal support, is a payment made from one spouse to another after a divorce takes place to ensure they can continue the lifestyle they have become accustomed to. Many people decide to create parameters around alimony in their postnups to prevent potentially unfair legal action from the other spouse after a divorce.
What a Postnuptial Agreement Cannot Cover
While it’s vital to detail what is important to you in your postnup, there are some things that you can’t include—if you choose to do so anyway, your postnup may be rendered invalid. Some details that can’t be covered in a postnup include child custody issues, family matters, and employment circumstances.
When creating a postnup, many parents that have children from previous marriages want to include child custody details in their agreement. Unfortunately, child custody or child support issues cannot be handled in a postnup and must be done separately. This is because child custody issues must go through family courts, and a postnup is often considered out of date regarding the family circumstances that exist at the time of divorce.
In addition, other family law matters cannot be handled via a postnuptial agreement. The postnup cannot outline where a child or family member should live or any of their possible custody and visitation arrangements in the event of a divorce. These issues must all be handled by a family court and determined to be in the best interest of the child involved. A postnup also can’t detail the employment circumstances of a spouse if a couple were to divorce.
How to Create a Valid Postnuptial Agreement in Arizona
To create a valid, legal postnuptial agreement with your spouse in Arizona, you need to ensure several factors are in place.
You Must Have an Attorney
As with any other legal concern, it’s crucial to have an attorney that you can trust to guide you through the process. In addition, you must create a postnup in Arizona with the help of a lawyer, or the document will not be considered legally valid.
The Agreement Must Be Done Voluntarily
Creation of the postnup must be done voluntarily by both spouses involved. This ensures that one spouse cannot force the other to create a postnup against their best interests or sign it against their will. If there is any evidence that the agreement may have been signed involuntarily by one of the parties, it may be considered invalid or be open to reconsideration to the court.
There Must Be Full and Fair Disclosure on Both Sides
Without full and fair disclosure from both spouses regarding their assets, a postnuptial agreement can be invalid. At the very least, this will severely affect how those assets are handled if a divorce occurs. Each spouse is responsible for accurately disclosing their assets, including their property and income, as well as any liabilities they may have. If either party lied about their assets or failed to disclose all of them, the postnup will most likely not be enforceable.
The Postnup Must Be Executed Properly and Notarized
Finally, you must ensure that your postnuptial agreement is executed properly, which is why you need the help of an attorney. Your lawyer will ensure that the document created is completely valid and meets the various requirements of Arizona state law. From there, they’ll validate that each party created and signed the agreement willingly and with full knowledge regarding its contents. After your attorney validates your agreement, it can then be signed by both spouses and notarized.
When to Consider a Postnup
You might consider getting a postnuptial agreement with your spouse if one of the following applies to your situation.
You Have a Great Deal of Important/Expensive Assets
Sometimes, one spouse may make more money or come into money during a marriage. When this happens, the spouse might consider getting a postnup to ensure that their money isn’t unfairly divided if they were to divorce their partner. For example, sometimes when a person receives an inheritance, they consider getting a postnup to assign ownership of the money and set clear boundaries for what would happen to it in the event of a separation. Many people also decide to get a postnup when they have many expensive or important assets that they don’t want to lose in a divorce.
Previous Financial Trouble
If your spouse has had previous financial trouble such as severe debt or has shown signs of financial irresponsibility, it may be wise to consider creating a postnup. This way, if you and your partner file for divorce or separate, you will not have to share their financial burdens with them. For example, if you and your spouse get divorced and your partner has severe credit card debt, a postnup clarifying you aren’t responsible for the debt they create may be able to save you from having to pay off someone else’s debt for years.
It’s Not Your First Marriage
Unfortunately, many people who have been divorced previously have faced unfair division of their own property and assets. Because of this, they may feel much more comfortable creating a postnuptial agreement with their new spouse, in case a similar scenario happens between them. Identifying your important assets and what should happen to them in the event of a divorce or separation can help bring you peace of mind that you’ll maintain your belongings regardless of what happens with your marriage.
The Benefits of Having of a Postnup in Arizona
Deciding to have a postnuptial agreement implemented after you’re married can help you in more ways than you might think. Some of the benefits that come along with creating a postnup include the following.
Spouses Can Maintain Individual Assets
One of the main reasons a married couple decides to create a postnuptial agreement is so that they can maintain their individual assets that are important to them in the event of a divorce. From beach properties to houses to expensive furniture, sometimes it’s best to outline your assets in a legal document to protect and maintain them, even after you are married.
Helps Avoid Future Disputes if Divorce Occurs
Another important role of a postnuptial agreement is that it helps to prevent future disputes over assets and other property in a divorce. Without a prenup or postnup, it is left up to the local court to define how to fairly divide the assets accumulated during a marriage. This can often create disputes between the spouses, who are now forced to fight for assets that were originally theirs.
Creates Clear Communication Between a Couple
While it may seem a bit awkward to talk to your new partner about what would happen if you were to separate, it does help to open a path of clear communication during your relationship. Talking with each other to establish boundaries and establish a plan for your assets can help you both, even if divorce seems impossible at the time.
Gives Peace of Mind
On top of establishing clear boundaries around your assets, one of the greatest benefits of a postnuptial agreement is the peace of mind it brings. Knowing that you have a legal document that describes what you and your spouse want to happen to your property and assets if a divorce occurs can help relieve stress for your future and your marriage.
Considering a Postnup
Postnuptial agreements, or postnups, are not uncommon in Arizona. They’re a great way to outline any new property settlements that have occurred since the marriage made property
division unnecessary. They can also ensure that all debts between spouses are paid off and that neither desert the other without meeting financial obligations. That’s what happens in most divorces, so it’s good to take steps to avoid this if possible.
*Editor’s Note: This article was originally published July 30, 2021 and has been updated July 14, 2022.
Ryan Reppucci, Co-Founder of The Valley Law Group, is recognized as one of Phoenix’s leading family law attorneys. After graduating from Arizona State with the highest honors and inclusion in America’s most prestigious student honor societies, Ryan attended the University of Detroit Mercy School of Law. His career as a law student was decorated with numerous awards, including the University of Detroit Mercy School of Law Book Award, nomination for membership in Who’s Who Among Students in American Colleges and Universities, as well as Moot Court.