What Is a Prenuptial and Post Nuptial Agreement?

A prenuptial agreement is a contract entered into prior to the marriage or civil union, where a post nuptial agreement is a contract entered into after the marriage or civil union has been performed. Both agreements determine how the assets and property will be divided upon separation or a divorce.

So Why Would I Need One?

Arizona is one of a handful of states that presumes all property that spouses acquire during marriage is community property. This means that husband and wife each own 50% of the property purchased during their marriage. However, all property acquired prior to the marriage by either spouse remains that spouse's sole and separate property.

Each spouse is also liable to pay all the debts incurred during the marriage, even if he or she did not know their spouse had incurred the debt, or even if the debt came about by accident. For example, if your spouse is a surgeon and is sued for malpractice, and if insurance is not enough to cover the damages, both spouse's property may be taken to cover the judgment. Likewise, if your spouse is a realtor who is sued for misrepresentation, an unfavorable judgment may permit the plaintiff to take certain community property. What about credit card debt? That qualifies as marital debt as well even if your spouse was the shopaholic.

Reducing The Risk of Getting Stuck With Your Spouse's Debt

If you properly create a prenuptial or postnuptial agreement. Typical provisions in nuptial agreements may state that all earnings by one spouse remain that spouse's sole and separate property, and that property may be purchased and owned by one spouse with the other spouse having no community interest in such property.

Prenuptial and postnuptial agreements may also be used in other circumstances, such as the following:

  • To identify property owned before marriage and to maintain its separate character during marriage;
  • To identify premarital debts and clarify the effect of payment with funds earned after marriage;
  • To minimize, establish, or eliminate spousal maintenance upon divorce.

Not all nuptial agreements will be considered legal and be upheld by the courts. A recent Arizona Court of Appeals decision held that a prenuptial agreement is almost always unenforceable if the spouse who did not draft the agreement did not have advice from an independent lawyer. Other reasons a nuptial agreement may not be enforced is if a spouse failed to disclose all assets; the agreement is a "rush job" with one spouse threatening the other that there will be no marriage if he or she refuses to sign, or if the proposed division of property is grossly unfair.

The Phoenix pre-nuptial agreement lawyers at Platt & Westby, P.C., are experienced in crafting sound contracts that will fulfill your intentions regarding your property and obligations. We make every effort to ensure that the agreement is entered into voluntarily, is free of fraud, and is fair and equitable so that it will have the best chance to withstand legal scrutiny in the event it is challenged-typically in the context of a divorce.

Contact our office or call 602-277-4441 to speak with one of our experienced family law attorneys at Platt & Westby, P.C.

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