Why Should I Consider a Prenuptial Agreement?

A prenuptial agreement, commonly known as a “prenup,” is a legal contract that a couple signs before marriage or entering a civil partnership. This contract specifies the division of their assets and debts if they divorce, separate, or one partner dies. While it may not sound like the most romantic gesture, it can play a crucial role in protecting individual interests and preventing potential disputes in the future.

In Arizona, prenuptial agreements are governed by the Uniform Premarital Agreement Act. This law allows couples to determine their financial rights and responsibilities during their marriage and in the event of a divorce. It covers property rights, spousal support, the division of assets and debts, and more.

A frequent misunderstanding is that prenuptial agreements are exclusively for the rich. In reality, they can be beneficial for individuals of any financial background. For instance, if you own a business, have children from a previous relationship, or have accumulated significant assets or debts, a prenuptial agreement can provide essential protections.

What Should I Include in My Prenuptial Agreement?

The stipulations of a prenuptial agreement can vary greatly depending on your specific circumstances. However, some common elements typically included in these agreements are:

Property Rights

You have the option to designate which assets are regarded as separate property (owned by one spouse) and which are considered marital property (owned by both spouses). This can include real estate, vehicles, businesses, investments, and personal belongings.

Debt Division

You can outline how any debts will be divided in the event of a divorce. This can protect you from being held responsible for your spouse’s debts.

Spousal Support

This is the amount and duration of spousal support (or alimony) that one spouse will provide to the other following a divorce.

Estate Plans

You can specify the distribution of your assets after your death.

This can be particularly important if you have children from a previous relationship and want to ensure they inherit specific assets.

Remember, a prenuptial agreement cannot include provisions related to child custody or child support, as the court determines these issues based on what is in the child’s best interests.

What Are the Consequences of Not Having a Prenuptial Agreement?

If you don’t have a prenuptial agreement and decide to divorce, Arizona’s community property laws will apply. Under these laws, any assets or debts acquired during the marriage are typically divided equally between the spouses. This can lead to outcomes that you may not have anticipated or desired.

For instance, if you started a business during your marriage, it could be considered community property and subject to division, even if your spouse did not contribute to it. Similarly, if your spouse incurred significant debts during the marriage, you could be held equally responsible for them.

What Are the Common Questions About Prenuptial Agreements?

Can I Modify My Prenuptial Agreement?

Yes, you can modify your prenuptial agreement after you’re married. In Arizona, any changes to a prenuptial agreement must be in writing and signed by both parties. This is known as a postnuptial agreement. It’s important to note that the same standards of fairness, full disclosure of assets and debts, and voluntary agreement that apply to prenuptial agreements also apply to postnuptial agreements.

For instance, if you or your spouse’s financial situation changes significantly after marriage, you may wish to revise the terms of your prenuptial agreement. This could include changes in income, inheritance, or the acquisition of new assets or debts.

What If My Spouse Won’t Sign a Prenuptial Agreement?

A prenuptial agreement is a voluntary contract. Both parties need to consent to the terms and sign it voluntarily. If your spouse declines to sign a prenuptial agreement, you cannot compel them. Using coercion or pressure can make a prenuptial agreement invalid.

If your spouse is hesitant, it may be helpful to have an open and honest discussion about why you want a prenuptial agreement. It’s not about mistrust or anticipating a divorce; it’s about planning and protecting both parties. You could compare it to insurance: you hope you’ll never need it, but it’s good to have just in case.

If your spouse still refuses to sign, you may want to consider a postnuptial agreement after you’re married.

Does a Prenuptial Agreement Guarantee I’ll Get What I Want in a Divorce?

A prenuptial agreement can outline a clear plan for dividing assets and debts in the event of a divorce, but it doesn’t guarantee that you’ll get exactly what you want. The court has the final say and can set aside a prenuptial agreement if it’s deemed unconscionable or if assets and debts were not fully disclosed at the time of signing.

For example, if your prenuptial agreement stipulates that you will receive a certain amount of spousal support, but the court finds this amount to be excessively unfair to your spouse, the court may adjust the amount. Similarly, if the court finds that the agreement was signed under duress or without proper legal representation, it may be deemed invalid.

How Can an Attorney Help with My Prenuptial Agreement?

Drafting a prenuptial agreement can be a complicated task that requires a thorough understanding of Arizona law. An experienced attorney can help you identify and evaluate all your assets and debts, understand your rights and obligations, and draft an agreement that accurately reflects your wishes. They can also ensure that the agreement is fair and does not place an undue burden on either party.

Having an attorney involved can add an extra layer of protection. If a prenuptial agreement is challenged in court, the judge will consider whether both parties had legal representation. If one party did not have an attorney, the judge may be more likely to find the agreement unconscionable and, therefore, unenforceable.

If you are considering a prenuptial agreement, call The Dodds Law Firm, PLC today at 623-267-0026 for a free consultation.