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CAN COHABITATING COUPLES HAVE PRENUPTIAL AGREEMENTS?

Not too long ago, it was considered shameful for two people to live together without being married. Today, most people are indifferent towards cohabitating couples and so their numbers have climbed steadily over the years. Here in Arizona, unmarried couples often delay getting married because they are afraid of being “locked in” to an adverse situation should the relationship fall apart.

Some of the advantages to having a prenuptial agreement is that it can allow you to keep your finances separate from your future spouse, protect you from their debts, protect your business interests and ensure that any children you have from a prior marriage are looked after.

However, some people have unrealistic expectations of what prenuptial agreements can do. For example, Arizona law does not permit parties to include provisions in the contract that go against public policy. Adding a provision stating that your partner must commit a crime in order to pay bills would not be acceptable.

Additionally, prenuptial agreements cannot contain plans about child custody or child support. In Arizona, family courts operate on the principle of doing things that are in the best interest of a child. Therefore, it is impossible to know what may be in the child’s best interest years later after a divorce.

Arizona cohabitating couples contemplating marriage under the protections of a premarital agreement are advised to first consult with their attorneys prior to forming the contract. Simply having a third-party present may be helpful in shaping the breadth and scope of your requirements. Also, executing the agreement in the presence of legal counsel can add validity to the terms of the document should the agreement undergo future challenges.

Source: Arizona State Legislature, “ARS 25-202 Enforcement of Premarital Agreement; Exception” Aug. 28, 2014

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