Pre- and Post-Marital Agreements

One of the most complicated areas of family law is that regarding pre and post-marital agreements, commonly referred to as pre and post-nuptial agreements.

Premarital Agreements are contracts between future spouses.  Arizona courts have held that when the agreements are voluntary, free from fraud, fair and equitable, they will control.  Whitmore v. Mitchell, 152 Ariz. 425 (App. 1987).  These agreements are intended to define how property will be divided in the event that the marriage does not succeed.  They define responsibilities during the period of the marriage, such as payment of a mortgage on a residence acquired by one of the spouses prior to the marriage. They also normally include a provision relating to whether or not either of the spouses would receive spousal maintenance upon dissolution of the marriage, attorney’s fees and a variety of other items. A post-marital agreement is a spousal agreement that is created after a marriage has occurred.  Spouses often find that a post-marital agreement is necessary when there are financial disputes during the marriage.

These agreements are complicated because of the statutory requirements that must be met to make them enforceable.  A.R.S. § 25-202.  In order for prenuptial agreements to be valid, they must meet the following conditions:

• They must be in writing;
• They must be signed by both parties;
• They must be voluntary;
• They cannot be against public policy;
• They cannot be unconscionable;
• They cannot make plans about custody or child support;
• They cannot restrict visitation rights.

We can prepare a pre or post-marital agreement for you and your soon to be spouse or we can participate in the review of a premarital agreement written by another family law attorney.  We will assist you in determining all of your assets and debts and how you intend to keep property separate during your marriage to your future spouse.

It is important to retain a knowledgeable attorney when entering into these types of agreements; the last thing that a party wants is to sign a prenuptial agreement and then find out ten years later that it is not enforceable.