Prenuptial and Postnuptial Agreements: Kiss of Death or Wise Decision?

Without a doubt, marriage can be an incredible and happy time for a couple. However, it is important to remember to protect yourself and your assets, and to be forward-thinking. The most common way for a person to do that is through a prenuptial or postnuptial agreement (better known as a “prenup” or “postnup”).

The main difference between a prenuptial agreement and a postnuptial agreement is the timing of when it is signed.

A prenuptial agreement is prepared and signed prior to the marriage being consummated. A postnuptial agreement can be done any time after a couple is already married.

Within both a prenup and postnup, the couple can decide how to handle a variety of topics if the relationship were to end. These topics may include whether money or other assets are to be considered community property or the separate property of the person who earned or owns it. It may also include how property is to be divided in the event of a divorce, or a determination of how much spousal support will be paid (or that no spousal support will be paid at all). However, courts will not honor any part of an agreement that is unconscionable or might violate public policy (if there is a clause that does not allow a spouse to gain weight, for example), or that limits any rights regarding a child or future child (for instance, spelling-out who will have decision-making authority for a child, or limiting the amount of child support that could be awarded, may be ignored by the Court).

In the past, there was a social stigma around these types of agreements. People would ask: “Why would you possibly go through with a marriage when you are already planning for it to fail?” But today prenuptial and postnuptial agreements are accepted and commonplace. The real advantage is a certainty. These agreements are away for a couple to come together, amicably, and decide a potential future for themselves. Prenups and Postnups are increasing in popularity and the stigma has all but disappeared.

The legality of a prenuptial or postnuptial agreement is codified in Arizona state statutes ARS §25-201 through §25-205, and in order to be valid and enforceable, there are a few requirements. The agreement has to be signed by both parties, executed voluntarily, and be in no way unconscionable at the time it was executed. An example of an agreement being unconscionable would be if one spouse does not reasonably disclose property or other financial obligations, or if a party signed the agreement under duress or coercion. There is no requirement that the agreement has to be executed by an attorney, nor any formal requirements as to formatting. However, as mentioned previously, the agreement will not be honored by a court if it is unconscionable, or if elements of the agreement are contrary to public policy.

If you are interested in learning more about prenuptial or postnuptial agreements, please do not hesitate to contact us for a consultation. We can be reached at 602-383-3610 or by email at gary@garyfranklaw or hanna@garyfranklaw.

At Frank Amar Matura, both Gary Frank and attorney Hanna Amar are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court and served on the Governor’s Child Abuse Prevention Task Force. Hanna Amar is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.famlawaz.com.  We look forward to hearing from you.

The information contained in this blog post is provided for informational purposes only, and is not intended to be, nor should it be construed as legal advice. Reading this information does not constitute an attorney-client relationship. For advice regarding your individual situation, you should consult with an attorney. To schedule a personal consultation, you can contact us at 602-922-9989 or reach us by email at info@famlawaz.com.