Are Prenuptial Agreements Valid in Arizona?

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Many couples across the country opt for prenuptial agreements before marriage. However, every state has different laws regarding the enforceability and legality of prenuptial agreements, and what works in one state may not apply to another. While signing a prenup gives someone the ability to protect their assets in a marriage, the document and the couple must meet a few critical requirements.

If you’re planning a marriage in Arizona, read on to learn more about prenuptial agreements in the state.

Are Prenuptial Agreements Enforceable in Arizona?

First, it is important to know that creating a prenuptial agreement in Arizona is legal and the document enforceable as long as certain requirements are met. For example, both parties must enter into the arrangement of their own volition and sign and notarize the document. Arizona Revised Statute Section 25-202 covers the legality of marital agreements and any possible exceptions to their validity.

However, even in cases where a premarital agreement seems valid to the party who created it, the other spouse may attempt to contest it and render it unenforceable at the time of a divorce. It is essential to hire an attorney to oversee your agreement and its filing to give it the best chance of avoiding invalidation in court.

What Is a Premarital Agreement?

Premarital agreements can have many functions, but the most common is to set out the terms for what happens to assets in the event of death or divorce. These terms can also outline financial responsibilities and rights for both parties entering a marriage.

Prenups often serve to differentiate between what constitutes community and separate property within the confines of the marriage. While Arizona outlines community property in Arizona Revised Statute Section 25-211, and states that any property acquired during the marriage is shared property except for gifts, inheritances, and other exceptions, a prenuptial agreement can create its own terms for this designation. With a prenuptial agreement, you can outline what is community property, any assets that are to remain separate property, and what should happen to both types of property if the marriage ends in divorce.

As the name implies, you must finalize a premarital agreement before the wedding. Any agreements made after wedding vows will fall under the umbrella of a postnuptial agreement, and any premarital agreement is void if someone calls off the wedding before it occurs.

Can You Create a Postnuptial Agreement in Arizona?

As indicated above, couples can create an agreement similar to a prenuptial after they’re married. In these instances, they are creating a postnuptial agreement. Postnuptial agreements can cover the same ground as prenups, determining what happens to finances and assets during and after a marriage.

The other difference between a prenuptial and a postnuptial agreement is enforceability. Generally speaking, prenuptial agreements hold up better in court than postnuptial agreements. The court treats a postnuptial agreement closer to a legal contract, so it will be under additional scrutiny when enforcement becomes necessary.

Do Prenups Hold up in Court?

Prenuptial agreements are typically under less scrutiny than other legal contracts or postnuptial agreements. Of course, there are still instances where the court decides a prenuptial agreement is unfair and invalid.

Some of the critical requirements for a prenuptial agreement to be validated and enforced include:

• Signing the document before the wedding – You must have the document finalized and signed by both parties before the wedding vows. The agreement does not take effect until the wedding.
• Both parties must sign the document – Prenuptial agreements cannot be verbal or handshake arrangements. The terms must be in writing, and the signatures of both spouses should be on the document and witnessed by a notary public.
• The terms should be fair – You will want to clearly lay out the terms of the arrangement in the document and define community property and personal property. One party cannot craft a prenuptial agreement to be egregiously one-sided, and an attorney can ensure you have a contract that will hold up upon legal review.
• Open understanding of finances – Both sides must disclose finances before they can enter into a prenuptial agreement. Both parties should demonstrate any assets they have and any debts or liabilities – Any dishonesty can render the agreement null and void.
• No mention of marital rights – Prenuptial agreements can only govern assets and marital property. You cannot use a prenuptial agreement to define what child custody or child support will look like. Any attempt to outline these terms in a premarital document is invalid.
• No coercion – A premarital agreement can only occur when both parties sign the document with a notary and of their own free will. If there is any attempt at fraud or coercion to encourage one party to sign the agreement, the court can invalidate the document when setting the terms of a divorce.

If a spouse contests a prenuptial agreement, they will typically try to highlight one of the above requirements the other party violated when drafting the document. If a judge determines one party violated the law when drafting the agreement, they can set aside the prenup and continue with the divorce without considering it. This will likely put one side at a disadvantage, as they will stand to leave the marriage with fewer assets.

Why Do Couples Create a Prenuptial Agreement?

prenuptial agreement may be beneficial to both the marriage and the partners involved.

Some of these instances include:

• Couples with significant assets – If one or both of the parties involved in the upcoming marriage have significant assets or business holdings, it can be beneficial to complete a prenuptial agreement. Such an agreement can protect these assets and leave them in the right hands after a divorce.
• Couples with one older party – If one spouse is significantly older than another, a prenuptial agreement may help with protecting the assets they’ve acquired over the years.
• One party has significant debt – Whether it’s student loans or other sources of debt, a spouse may be responsible for some of their partner’s debt if they take on more during the marriage. Debt is community property in Arizona.
• Income disparity – If one spouse has significantly more money than another, a prenuptial agreement can allow them to protect it during a divorce.
• Anticipating an inheritance – While inheritances are typically separate property in Arizona, a prenuptial agreement will protect the inheritance from being contested.
• Entering into a second or third marriage – Many spouses who are entering into their second or subsequent marriage opt for a prenuptial agreement to expedite the potential divorce process.
• Children from a previous relationship – If one spouse already has children from another relationship and plans on inheritance for them, a prenup will help clarify how to distribute assets after their passing.

Does a Prenup Prevent Spousal Maintenance (Alimony)?

Spousal Maintenance (Alimony) agreements are often part of a prenup and can be a sticking point in divorce negotiations. However, prenups that waive or eliminate alimony are not always advisable. Agreements that attempt to deny the other party any form of alimony payments in advance may be at risk of invalidation if they are deemed unfair by a judge.

Instead, what an experienced attorney will advise is setting benchmarks in the prenuptial agreement related to alimony. For instance, instead of denying all alimony, your attorney may suggest setting terms like not paying alimony payments for a marriage lasting less than seven years. Anyone looking to craft a prenuptial agreement should seek an attorney’s input on their financial situation to arrive at a fair and legal solution.

Do I Have to Hire an Attorney When Creating a Premarital Agreement?

Hiring an attorney is the easiest way to ensure your prenuptial agreement is valid in Arizona. While you can create an agreement without an attorney, this leaves you open to potential holes that can invalidate your prenup in the event of a divorce. An attorney can help you with the two primary reasons Arizona Family Court invalidates premarital agreements: failure to follow the correct process and presenting fair terms.

When you hire an attorney, they will work with you to craft your premarital agreement and present it to your fiancé in the appropriate manner. You’ll then need to disclose all your financial information to the other party and wait for them to do the same. You can potentially waive this disclosure, but it’s best to do it to avoid opening yourself up to issues with contesting the document should a divorce occur.

Both spouses will need to hire separate attorneys for the premarital agreement process. If one spouse has legal representation and the other does not, the party without legal representation can use it as a point of contention in court. A judge may decide to invalidate the agreement and declare the parties did not agree on even terms.

Once both sides come to an initial agreement on the terms, they will need to set a date to meet and sign the paperwork before a notary public. One party cannot ambush the other on the wedding day with the agreement, as the law sees this as a form of coercion. Both parties should be present with legal representation and sign the documents voluntarily.

Your attorney will also help during the drafting process to ensure there’s nothing inappropriate in the agreement that could hinder its chances of remaining valid. A valid premarital agreement is one that clearly outlines the provisions for community property and personal property in the marriage. These agreements should not seek to punish the other spouse but should try to protect both in the event of a divorce.

Prenup Agreement FAQs

You should work with your attorney to craft a will that works with the prenuptial agreement and not against it – or vice versa. While these two documents typically cover different ranges of topics and deal with varying issues, they may sometimes overlap. A contradictory will and prenuptial agreement can cause issues after a spouse dies and lead to the assets going through an arduous probate process.

If divorce occurs between a couple who signed a prenuptial agreement, both parties must abide by the terms outlined in a valid premarital contract. If both parties entered a fair contract willingly, the court will enforce any guidelines for the distribution of assets or spousal payments. In some cases, one spouse may attempt to contest the prenup and ask a judge to nullify it as they consider the terms of a divorce. The spouse will need to provide evidence of improper procedure or terms of the agreement.

If both parties follow all the proper procedures, prenuptial agreements are enforceable in Arizona. For a premarital contract to be enforceable, both sides must agree to sign it of their own volition without any coercion, as well as have legal counsel present when negotiating and signing the document. The contract must not have any unfair or illegal requirements within it. If your contract meets these requirements, it should hold up in court even if the other spouse attempts to contest it.

Premarital agreements mostly focus on the distribution of assets after one spouse dies or files for divorce. They also can address the subject of spousal support in the event of a divorce. A premarital arrangement cannot outline child visitation or support payments after a divorce. You cannot create terms that penalize a spouse for infidelity, nor can you use a prenup to claim assets hidden from disclosure during property division are your separate assets.

The Valley Law Group: Experienced Prenuptial Agreement Attorneys

Contact us today to learn more about how we can help and to schedule a free consultation.

1. 25-202 – Enforcement of premarital agreements; exception. (n.d.). Www.azleg.gov. Retrieved February 7, 2024, from https://www.azleg.gov/ars/25/00202.htm#:~:text=25%2D202%20%2D%20Enforcement%20of%20premarital%20agreements%3B%20exception&text=A.
2. 25-211 – Property acquired during marriage as community property; exceptions; effect of service of a petition. (n.d.). Www.azleg.gov. Retrieved February 7, 2024, from https://www.azleg.gov/ars/25/00211.htm

Jonathan Roeder

Jonathan Roeder, Founder/Director of Marketing of The Valley Law Group, is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.