Introduction
Do you need to know what happens when you divorce without a prenuptial agreement? Marriage is a huge and life-changing event, not only emotionally, but financially. It’s best to understand how prenup works, who could benefit from it, and what happens if you don’t get it.
While it can be a bit uncomfortable to discuss a prenuptial agreement, it’s always smart to play it safe. After all, once you’re married, your possessions and savings will be legally bound to someone else, and that’s a big deal.
What Does a Prenuptial Agreement Cover?
Under Arizona law, a prenuptial agreement can protect your finances if you get a divorce in the future. This agreement must be fair and willingly entered into. It’s also a reliable way to reduce future conflict between you and your spouse in the event of a split. By giving clear definitions for spousal support and asset division before getting married, you can protect yourself against your spouse’s current or future debts.
A prenuptial agreement gives you a chance to think about the legal and financial aspects of marriage before your wedding. In order for the document to be valid, you’ll have to sign it in front of an attorney or notary.
Is a Prenup Necessary for You?
Not everyone needs a prenuptial agreement. People who might earn a lot later on (through investments or inheritance) and those with elderly grandparents or children that need care might need to think about a prenuptial agreement. If you’re about to begin a lucrative career, own a business, or there’s a large net worth difference between you and your spouse, a prenup might also be a good idea.
Divorce Without a Prenup
If you’re going through a divorce, you’ll have to choose how to divide your debts and property with your spouse. Otherwise, a court will have to do it. Here are some steps you’ll need to take regardless of which route you go:
- Decide whether the debt or property is separate or belongs to you both
- Agree how much the property is worth
- Choose how to split it
Arizona is a community property state, so if you acquire property during the marriage that isn’t an inheritance or a gift, it belongs to each of you. While some states require for the property division to be perfectly equal, Arizona law doesn’t. However, it does need to be fair and usually ends up about equal.
Separate vs. Community Property
While most debts and assets acquired during a marriage belong to each spouse, it’s possible to change community property into separate property or vice versa. If you commingle your marital property with separate property, it’s possible to change assets into shared assets without knowing it. For example, if one spouse has a premarital bank account and the other spouse deposits money into it regularly, it may be considered martial property.
If both spouses are paying on expenses for a home (such as mortgage payments), the house may become marital property even if it’s only technically owned by one of the spouses. Some assets can be partially separate or partially community, such as a business one partner started before getting married and continued once the marriage ended.
How to Protect Yourself without a Prenup
Prenuptial agreements are a reliable way to protect your assets in a divorce, but they aren’t viable for everyone. Thankfully, there are some ways to protect certain assets (although some will still be vulnerable without a prenup). Here are some methods for protecting your financial health in case of a divorce:
Get a “Postnup”
A postnuptial agreement is the same as a prenup but takes place after you’re already married. Events such as purchasing real estate or one spouse leaving their job should trigger a discussion for signing a postnuptial agreement.
Don’t Mix Your Funds
Commingling can be a dream come true for some spouses and feel like a risky gamble to others, depending on their finances before marriage. An account can easily become marital property if both spouses use it (or even if you put funds into the account from a joint account), even if most of the funds in it were there before the marriage. One way to bypass losing half of your account in the event of a divorce is to never make it a shared account (even unofficially) in the first place.
Hold Onto Retirement Account Statements
Some people go into a marriage with retirement account assets. If this applies to you, make sure you get an account statement from the date of marriage (and divorce, if applicable) so you can prove how much was in there before the wedding. If you can do this, the court may allow you to keep that amount and split the remaining money.
Don’t Combine Real Estate
Adding your spouse to the deed for your home sounds practical, but keep in mind that if you do this, you might lose half its value if you divorce. Even if you remove their name from the deed later, the court may still presume that your spouse owns half the house because you considered it shared before.
Although a prenuptial agreement sets everything out much clearer, you can still get by without one if you take some of these steps. Keep in mind that divorce can negatively impact your credit, so you’ll need to keep a close eye on your score.
Need Some Help Creating a Prenup or a Postnup in Arizona?
Since a prenuptial agreement is of such importance, you’ll want to make sure it’s legally sound. While it’s not fun to think about, a prenup doesn’t mean you expect the marriage to fail. It’s just a straightforward way to protect your own best interests, and for your spouse to protect theirs without confusion. A family law attorney can help you draft an agreement that you’ll know for certain is enforceable.
Another issue they can help you with is distinguishing separate property from marital property, as this doesn’t always go smoothly with divorces. With a complex situation regarding your assets and property, you’ll be better off speaking with a legal professional who can help.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
