FindLaw KnowledgeBasePublished: 2013-01-30
With more and more people marrying later in life and the increase in second marriages, prenuptial agreements are becoming more popular. A prenuptial agreement is a marital contract that is entered between a couple prior to their marriage. Generally a prenup ensures that the assets a person brings into a marriage remain their own if the marriage ends in divorce. The prenuptial agreement circumvents the idea of “what is mine is yours.”
Benefits of a prenuptial agreement
Couples choose to enter into a pre-martial contract for many reasons, including to:
- Protect assets by determining the division of property between spouses in the event of separation and/or divorce
- Protect children from a previous marriage from financial repercussions of an unsuccessful subsequent marriage
- Protect business assets in the event of a divorce
- Predetermine and possibly limit the payment of alimony in the event of divorce or separation
- Determine the allocation of assets when one spouse dies.
Generally a prenuptial agreement will be enforced as long as the agreement was executed properly and the terms are fair. In most states, including Arizona, a prenuptial agreement must:
- Be in writing
- Be entered into by both parties voluntarily
- Provide a full and fair disclosure of all assets and liabilities at the time of the divorce
- Be executed by both parties before a notary public
A prenuptial agreement is enforceable as long as the formalities listed above are followed and the agreement is not unconscionable. Prenuptial agreements are limited to financial issues between the spouses. Any provisions that deal with child custody or visitation are unenforceable by the courts.
What is a postnuptial agreement?
A postnuptial agreement is very similar to a prenuptial agreement except that it is entered into after the marriage. Many times a spouse asking for a postnuptial agreement senses trouble in the relationship and wants to lock down the property distribution in case that trouble turns to divorce.
Contact an experienced family law attorney
Drafting a prenuptial or postnuptial agreement takes time and can be very complex. For the contract to be enforceable both parties have to fully disclose all assets and liabilities. This can be a daunting process and failing to provide all of the information may render the contract unenforceable.
Hopefully, you will never have to test the validity of a prenuptial agreement and you and your spouse will live happily ever after. If, however, happily ever after is not in your future, having an experienced prenuptial agreement attorney guide you the process is important to ensure that the agreement is enforceable.