Prenuptial Lawyer In Arizona

What is a Prenuptial Agreement?

Prenuptial agreements, often referred to as prenups, are legal contracts agreed upon by two individuals who intend to marry. The terms of a prenup outline how individual assets will be treated should the marriage end.

While any couple can benefit from a prenup, prenups are often utilized by those who may bring a significant amount of individual assets into a marriage. When a couple is married in Arizona, their individual property should be protected from acquisition by the other at the end of the marriage, unlike community or marital property. However, without a prenup, both parties could make a legal argument as to how part of those assets became marital property during the course of the marriage. To protect this property, prenup identifies who is entitled to specific pieces of property that were acquired prior to the marriage as opposed to property acquired during the marriage.

Prenups can include any number of assets, including family heirlooms, real estate, and investments, amongst others. Because prenups are legally binding agreements, you will want to ensure you include any assets of which you hold sole ownership. By including them in a legally valid prenup, once the document is signed and notarized – and once your marriage has occurred – you have eliminated any debate over who is entitled to the property.

While the primary intent of most prenups is to protect assets, a prenuptial agreement can also outline the rights and responsibilities of both individuals entering the marriage. When a couple establishes a prenuptial agreement, they are able to make important decisions ahead of time that would ultimately need to be decided in the event of a divorce. Because these decisions are made prior to the marriage, it can help save both time and money should the marriage end. Often, the assets protected and the decisions made in a prenuptial agreement are those that could be highly contentious, and while decisions around them could start with amicable discussions, they can often turn into frustrating arguments.

Instead, a prenup can dictate whether assets are defined as community or marital property. This is crucial because if an asset is determined to be marital property, it is owned or contributed to by both spouses and therefore, both have a claim to the asset if the marriage should end. This is not so for assets defined as individual property. A prenup can also define who has control of a particular asset during the course of the marriage.

It is crucial to note that a prenuptial agreement must be finalized prior to the legal beginning of the marriage, which is considered to be the moment that the couple exchanged vows in a wedding ceremony. If, for any reason, the couple calls off the wedding, the agreement becomes null and void.

Deciding which assets to include in a prenuptial agreement is a matter of determining which assets you would like to protect or control within the marriage.

Assets and stipulations that you may want to consider as a part of your prenuptial agreement may include:

These are just some of the inclusions of a prenuptial agreement. The skilled family law attorneys at The Valley Law Group can further counsel you on the specifics of your situation.

To obtain a prenuptial agreement, contact a family attorney to schedule a prenuptial agreement consultation. Both parties will need to make a full financial disclosure and outline the desired terms of the agreement. The prenuptial agreement can then be drafted on paper and signed by both parties. The signed document is then sent with the application to the clerk of court in your county of residence. For the prenup to be valid, these steps must be executed prior to the marriage.

An important note is that prenuptial agreements must be fair to both parties and must only set forth terms for allowable issues. For example, a prenup cannot require a spouse to waive rights like child support. It can only be used to define terms for marital property and how it is distributed.

In addition, before submitting your application or signing your prenup, you and your soon-to-be fiance should each have an attorney independently review the documents.

Arizona has several requirements that must be met in order for a prenuptial agreement to be considered valid and enforceable.

These requirements include:

• The agreement should be signed in advance of the wedding. While it is validated on the wedding day, signing well in advance of that time allows both parties to not only review the document but ensure they fully agree with its terms.
• The agreement cannot be valid if the parties agree in any way other than a signature. That means they cannot have a verbal agreement or a handshake. The specific terms must be in writing.
• The agreement must be fair to both parties involved. It must be specific on what is considered marital property and what is considered personal property. An attorney will review the terms on your behalf to ensure that it is fair in the eyes of the law. Should you need to enforce the prenup during a divorce, the Arizona Family Court will ensure its terms are valid.
• Both individuals must sign the document in the presence of a notary and of their own voluntary will. Any agreement signed under duress or by means of fraud will not be considered valid.
• The prenup may not include any stipulations on marital rights, only marital property. This means that terms such as child custody or child support may not be included in the contract.

If a prenuptial agreement is legally sound and valid under Arizona law, it is a legally binding document that became effective at the time of the marriage. In an uncontested divorce, where both spouses agree to the divorce and choose not to litigate its terms, the spouses will simply agree to follow the prenuptial agreement. If the divorce is contested, the court will determine that the prenup should be enforced during litigation.

The first step in ensuring that your prenuptial agreement is legally sound is to work with a qualified and experienced attorney who can help you draft the contract. Working on a prenuptial agreement without the help of an attorney can leave you vulnerable to mistakes or inequitable terms.

In the event of a divorce, if one spouse feels the document does not follow the proper legal procedures or is unfair, they could challenge the validity of the prenuptial agreement. If a challenge is brought on a prenuptial agreement, most courts will begin by looking at the circumstances surrounding the creation of the document. A successful challenge will invalidate the document and eliminate its terms.

Prenuptial agreements can be modified up until the time it is signed and notarized. That means you can alter any drafts of the agreement along the way. However, once it is signed and notarized, the only way to modify the agreement before marriage is to create a new agreement.

After you are married, if you and your spouse determine that you would like to alter your prenup, you must go through the process of filing a postnuptial agreement that specifically overrules the details and agreements made in your prenuptial agreement. If you choose to file a postnuptial agreement, understand that it must meet the same validation requirements as a prenuptial agreement.

Mistakes can occur in just about anything, and that is true for prenups as well. When creating a prenup, you can avoid costly mistakes by working with an attorney.

Common mistakes to watch out for include:

• Signing under duress- If you or your spouse feel forced to sign your agreement or were presented with the document under fraudulent parameters, your prenup could be voided. This stipulation also includes if the document is signed while under the influence of any drugs or while intoxicated. Both parties need to agree to the terms and sign the document willingly, voluntarily, and while of sound mind and body.
• The agreement is unfair- Even though you and your spouse are creating the terms by which the prenup will exist, it must still be legally fair to both parties. If the prenup provides an outcome that is significantly lopsided, the agreement could be voided.
• Asset and debt misrepresentation- Just as in a divorce, one spouse may feel it necessary to hide certain information from the other. However, failing to reveal all assets and debts could negate the agreement.
• Including marital rights matters- A prenup can only speak to marital property and not marital rights. For example, if the prenup includes provisions regarding child support or child custody for a child the couple shares, then it could negate the agreement.
• Improper spousal maintenance provisions- While a prenup can set forth terms that include an agreement one spouse could receive spousal maintenance, it cannot stipulate the amount they should receive. Similarly, an agreement cannot be made to falsify spousal maintenance terms so that one spouse can retain some type of government assistance.
• Incompetence- As stated, the prenup needs to be signed by both parties while they are of sound mind and body. If one spouse is deemed incompetent, then they are not of reasonable capacity to sign the document.
• Using only one attorney- Both parties involved in the prenup must have independent legal representation. This means that the prenup must be reviewed by both attorneys in order to ensure fairness and that the other requirements for validation are met.

While these are not the only mistakes made in the creation of a prenuptial agreement, they do represent the most common. If mistakes are made in a prenuptial agreement, then it can be challenged in court by either party, which negates the purpose of the agreement in the first place. Ensuring you do your due diligence in the creation of the contract can save you time and money later.