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 a prenuptial agreement or a postnuptial agreement. These marital 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 getting 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.
A postnuptial agreement often covers financial matters, such as anticipating real estate property division or setting the ground rules for how finances are handled during the marriage. Another key reason a couple may seek a postnuptial agreement is if one spouse inherited a considerable amount of assets or properties and wishes to protect that inheritance in the event of a divorce. Whatever the specific terms, postnuptial agreements exist for pragmatic reasons. Couples can use the agreements to avoid disagreements and extended litigation should there be marital problems and divorce in the future.
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 according to how you outlined them in the document. Thus, postnups give you and your spouse advance control over your own property should a divorce occur.
What Is the Legal Basis for a Postnuptial Agreement?
Prenuptial agreements are both valid and enforceable under Arizona law. Specifically, the Uniform Premarital Agreement Act in Arizona Revised Statute Section 25-202 makes prenups legal under state law.
Unlike prenuptial agreements, Arizona does not have a specific statute regarding postnuptial agreements. The family courts do recognize these legally binding documents, though, because they are valid by virtue of past cases, known as precedent cases. Since the courts have a history of enforcing postnuptial agreements, they can continue to do so.
Postnuptial agreements also make it easier to avoid the court system altogether. By deciding important matters while you are still married, you and your spouse have few, if any, reasons to require a court ruling on matters that you have already settled. Whether your divorce is handled outside of court or through court while using the postnuptial agreement as a guide, you will be able to end your marriage faster and easier than if you did not have a postnuptial agreement and then had to engage in drawn-out litigation.
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 marital 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 who 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 CAN NOT 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 who 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.
Can Child Possession Rights Be Affected by a Postnuptial Agreement?
As mentioned, under state law, child custody and support matters cannot be determined outside of family court. Those matters can only be settled through a family court judge who has jurisdiction over your divorce.
However, this does not mean that child custody and child-rearing matters are not affected by postnuptial agreements. How your finances and assets are split will have an effect on every member of the family, including children. For example, deciding who keeps the house where the children currently live may become a factor during family court decisions. Both spouses should keep the best interests of their children in mind when deciding how to draft their postnuptial agreement.
Children should not be left without steady and substantial access to resources they will need, like food, shelter, and clothing. To avoid unintentionally leaving children without adequate resources, keep them in mind as you decide how to split assets. The comfort and well-being of children should be accounted for regardless of how parenting time is eventually allotted by the courts.
Postnuptial agreements can also account for children from another marriage. The agreement can protect assets belonging to that parent. You can protect your child’s rights to inherit assets from your side of the family. Even though the court retains the right to set terms that contradict a postnuptial agreement during a divorce, the agreement can still be used as evidence in court. If a dispute over child support or custody comes up, for example, the judge may consider language in the postnuptial agreement and use that information to guide their court order.
How To Prepare for a Postnuptial Agreement
If you are planning to draft a postnuptial agreement with your spouse, there are many steps that you can begin ahead of time that will make the overall process easier. Early discussions can cover what types of assets either spouse wishes to keep – be sure to jot down notes that can be clearly written out later.
You can save time by gathering financial information ahead of time. This can include bank accounts, property documents, investment accounts, and other documents that describe your assets. By disclosing debts and assets upfront, you and your spouse will ensure the full transparency necessary for a legal postnuptial agreement. This can help ensure that neither party feels they are being treated unfairly. Transparency is an important element of any successful and legally binding postnuptial agreement.
Remember: what may appear fair to one spouse may feel unfair to the other spouse. If any financial details come as a surprise, complicating the postnuptial agreement drafting process and causing one spouse to feel mistreated. By discussing which assets you wish to keep early on, you can make the overall process easier later on.
Starting a healthy, open, and productive discussion early on can help you prepare for the drafting process when you will be paying an attorney for their time. Then, once you have hired an experienced family law attorney, they can help by mediating those disagreements once the postnuptial agreement drafting has started. You may even find it beneficial to hire an attorney to mediate some of the more contentious disagreements well before the drafting process starts.
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 a Family Law 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 family lawyer, or the document will not be considered legally valid.
Both Parties Must Have Legal Representation
One of the core principles of our legal system is that all parties’ rights and interests should be protected in the courtrooms. One way this is done is by encouraging both parties to have their own legal counsel. Your attorney is there to protect your rights and advocate for your interests. This is also true outside of the courtroom, including during the legal document drafting stage.
If you are preparing to sign a legally binding document, you should have a lawyer who will read the postnuptial agreement carefully and monitor how it is drafted to ensure that you are not being taken advantage of. If one party had legal representation while the other did not, the courts may view this as something that weakens the legitimacy of the document.
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 by 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.
Be Clear About What Is Covered and Make Sure That the Terms Are Enforceable
The agreement should be written and formatted to clearly outline the assets that are protected following a divorce. The document should describe the division of assets during marriage and how it should look after the divorce. It should also take into account income earned during the duration of the marriage, which could go on for decades.
To be enforceable, both parties must be able to uphold the agreement’s terms. The agreement must be free of issues that cannot be decided by a postnuptial agreement, like child support, and the agreement must be reasonable and fair. Otherwise, the court may refuse to abide by the terms of the postnuptial agreement.
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?
Many people think that postnuptial agreements are only for wealthy people, but this is not the case. Anyone of any economic status can create this type of agreement if they wish to. While these legal documents can be drafted in a straightforward manner that is free of legalese, it is still advisable for both parties to seek legal counsel before beginning the process.
As mentioned, in order for the agreement to be valid, certain requirements must be met, and skilled family law attorneys must ensure your postnuptial agreement is legal and binding. In addition, representation can help you ensure that one spouse isn’t taking advantage of the other.
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 the 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, making property division unnecessary. They can also ensure that all debts between spouses are paid off and that neither deserts 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.
Our team of family lawyers is prepared to help you with your postnuptial agreement. Contact us to schedule a free consultation to discuss your postnup questions. We’re here to help!
*Editor’s Note: This article was oroiginally published Jul 14, 2022 and has been updated May 1, 2024.
Ryan Reppucci, Founder/Director of Legal Operations 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.