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By definition, prenuptial agreements (aka premarital agreements) are reserved for couples before they get married. That said, married couples can get a postnuptial agreement at any time — which is basically the same thing as a prenup, though the proper nickname would be postnup.
Most attorneys recommend signing a prenup before you get married, but the possibility of a postnuptial agreement means it’s never too late to get a postnup after a marriage.
In this article, we’ll discuss the differences between prenups and postnups along with the following important topics:
- Why prenups and postnups are important in Arizona
- How to get a postnuptial agreement
- How working with an attorney can help
- Frequently asked questions about prenups and postnups
- What to do if you need help with a prenup or postnup
In simplest terms, a prenuptial agreement is a written contract between two adults who are getting married. The contract lists each party’s individual property and debts, then specifies what each party’s property rights will be after the wedding.
There are no established rules for prenuptial agreements, so they vary widely from case to case. That said, a prenup must be clear and fair for a court to uphold it.
Note that a prenup hinges on a pending marriage, so any promised property rights would only take effect if you actually get married. If you call off the wedding, the contract is null and void.
A postnuptial agreement is exactly the same as a prenuptial agreement, with one major exception: it takes place after the marriage. As such, a postnup must now address community property and debt that’s been accumulated since the marriage.
In the absence of a prenup, both spouses equally share the assets and debt accumulated after marriage. That means you’ll generally need to divide the community property and debt evenly if you want the postnup to stand up in court.
While community property complicates matters a little bit, it’s easy to cover future assets and debt with a postnup. As long as both parties agree and the contract is clear and fair, you can divvy up future earnings and debt as you please.
Why Prenups and Postnups are Important in Arizona
Arizona is a community property state, meaning assets and debt accumulated after marriage are shared evenly (ARS 25-211). That means when a married couple gets divorced in Arizona, the default action is to split the community estate 50/50.
While undeniably fair, that can be problematic if you earn significantly more income than your spouse and you want a portion (or all) of that income to be protected. The reverse is true, too — if your spouse racks up thousands of dollars in joint debt, you’re responsible for half of it in a divorce.
That’s not all. Arizona law respects an individual’s personal property going into a marriage, but if you intermingle personal assets with joint assets it may be classified as community property.
For example, let’s say you have $100,000 in your savings account when you get married. If you regularly deposit joint income into the account and pull out funds to cover joint expenses to the point that it’s impossible to differentiate your original $100,000 from the joint deposits and withdrawals, the court may consider the account community property in a divorce case.
How to Get a Postnuptial Agreement in Arizona
The first step in the postnuptial agreement process is to take inventory of your estate. List out all of your assets and debt, then identify what is community property versus personal property.
Next, meet with an attorney to discuss your case. You and your spouse can use the same attorney if you’re in complete agreement, though it’s advised that you retain separate attorneys if you’re contemplating separation or divorce.
Your attorney will draft the postnuptial agreement, then all you have to do is sign on the dotted line in the presence of a Notary Public. Once the contract is signed by both parties and notarized, your postnup is official.
How Working With an Attorney Can Help
If your spouse (current, separated, or divorced) contests the prenup or postnup in court, a judge may nullify the contract if it’s considered grossly unfair, misleading, or unlawful. Working with an experienced family law attorney ensures that your prenup or postnup will hold up in court.
FAQs About Prenuptial Agreements in Arizona
Q: What happens when your spouse dies and you have a prenup?
When your spouse passes away, your prenuptial agreement will be evaluated in conjunction with his or her will. As long as the two documents don’t conflict, the court should respect the provisions in the prenuptial agreement.
If the will and prenuptial agreement conflict, or if another party contests the prenuptial agreement, your attorney will need to defend the prenuptial agreement in court before the estate’s affected assets are distributed.
Q: Do you need a lawyer for a prenup?
Technically you don’t need an attorney to draft a prenup as long as the contract is signed by both parties and notarized. However, it’s highly inadvisable to draft or sign a prenuptial agreement without an attorney. Taking the DIY approach risks having the contract invalidated in court down the road, or finding yourself on the wrong end of the deal if you’re not paying close attention to the fine print.
Q: Can a prenup be changed after marriage?
Yes. Like most legal contracts, prenups and postnups may be modified, amended, or rescinded at any time as long as both parties are in agreement (ARS 25-204).
Q: Can a prenup be thrown out?
Yes. Interested parties may contest a prenup or postnup on the grounds that it’s unlawful, misleading, or grossly unfair. However, even an “unfair” agreement that heavily favors one side can withstand a judge’s scrutiny providing the contract’s language is clear and both parties were fully aware and accepting of its provisions when they signed it.
What to Do If You Need Help With a Prenup or Postnup in Arizona
If you are contemplating separation or divorce, or if you’re looking for a way to protect your assets for children from another relationship, discuss your case with a family law attorney as soon as possible. It’s best to draft and sign a prenuptial agreement before you get married, but a postnup is always on the table if both parties are in agreement.
For simple cases, your attorney can quickly draw up a prenup or postnup. In complex cases, your attorney can negotiate with your spouse’s attorney on your behalf and ensure your best interests are protected in the final contract.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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