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Prenuptial (Premarital) Agreements in Arizona

Prenuptial Agreements or Premarital Agreements in Arizona are governed by the Arizona Uniform Premarital Agreement Act as set forth in Arizona Revised Statutes Sections 25-201 through 25-205. The statutes, in part, provide that such agreements must be in writing. It is also important that the parties disclose in writing their individual assets, debts and incomes as part of the process. Parties are lawfully entitled to enter into premarital agreements regarding property interests, income, expenses, spousal maintenance, what happens to their property upon their death, and any other terms that are not “unconscionable,” in violation of public policy, or would constitute a crime. Premarital agreements regarding future custody and child support are not enforceable.

Premarital agreements come in all shapes and sizes. Some people merely want to protect the property that they have acquired prior to marriage as sole and separate property, but agree that all income earned during the marriage is community property. Other people desire to enter into a more involved premarital agreement whereby their individual incomes earned after marriage remain his or her sole and separate property. Some people merely desire to agree that no spousal maintenance (alimony) will be paid in the event of divorce.

It is always best to seek legal advice from an attorney experienced in drafting premarital agreements prior to executing such agreement. Although legal counsel is not required by Arizona law, there is a much higher risk that a pre-marital agreement will be found invalid. A poorly prepared agreement can also lead to costly and time-consuming litigation.

It is quite common for one of the parties to desire to enter into a premarital agreement, while the other person feels that such is an indication that the person is “planning for a divorce.” Although such feelings are understandable, modern realities suggest that it makes good common sense to at least look into the possibility of a premarital agreement even if you fully intend your marriage to last forever. A well-drafted premarital agreement can save the parties substantial adversity and attorney’s fees in the event of divorce as many of the issues are essentially agreed upon in advance. It is good philosophy that a premarital agreement is merely providing defined terms, which would otherwise be governed by a different contract – i.e. complex court cases and statutes that are difficult for a non-attorney to understand.

The following are potential issues to address in a premarital agreement.

  • Premarital real estate
  • Premarital financial accounts
  • Personal items owned prior to marriage
  • Business interests established prior to marriage
  • Income during marriage
  • Expenses during marriage
  • What happens to property in the event of either person’s death
  • Debts incurred prior to marriage
  • Debts incurred after marriage
  • Inheritance funds and property

Not everyone needs a premarital agreement. Sometimes, applicable community property laws are consistent with a person’s desires regarding the marriage. For example, community property laws can protect a person’s pre-marriage property to a certain degree without such agreement. However, there are many claims that can be made in a divorce, which the parties did not intend at the time of marriage. A good family law attorney will advise you whether a premarital agreement makes sense for you. Consulting with an attorney who is experienced in drafting and litigating premarital agreements may save you a great deal of heartache and expense in the future.

Postnuptial (Post-Marital) Agreements

Postnuptial or Post-marital agreements (agreements that are entered into after marriage) can generally address the same issues as premarital agreements. If they are properly written, and if procedures are properly followed, such agreements are generally enforceable. Such agreements, however, are not governed by the Uniform Premarital Agreement Act. Pursuant to Arizona law, the burden of proof for enforcing such agreements is more stringent than the burden of proof applicable to premarital agreements.

Many people (and attorneys) overlook post-marital agreements as a potential alternative to divorce or legal separation. It is common knowledge that many divorces are a product of financial disagreements and concerns. Some people are able to hold their marriage together by separating their finances. However, merely setting up separate accounts will not accomplish this. Income earned during marriage is generally considered community property regardless of whether you keep separate accounts unless you have a premarital or post-marital agreement.

Cohabitation Agreements / Domestic Partner Agreements

Cohabitation agreements (also called domestic partner agreements) can be drafted when people reside together or intend to reside together. Such may apply to same-sex couples, heterosexual couples, or platonic friends or family members. Such agreements, if they are properly written and if procedures are followed, are generally enforceable. Cohabitation agreements can addressthe same issues as premarital and post-marital agreements as described above. For example, people may desire to own a home together equally or in different percentages. Cohabitation agreements should address how expenses are shared. Such can also address what will happen in the event of a parties’ death. Like marriages, some domestic partner relationships terminate over time. Even if you plan on residing together for the rest of your lives, it is smart to address how the financial issues are going to be addressed. Such may save a great deal of heartache and expense in the future.


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