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Should you consider getting a prenup?

| Sep 16, 2020 | Family Law |

It may not seem romantic to ask for a prenuptial agreement, but a prenup can offer important protections in the right situation. For example, if you have children from a previous relationship, you may want to protect their inheritance rights. Or, if you come to the marriage with significant assets such as a business or professional practice, you may want to specify how they would be divided in the event of a divorce.

Asking for a prenup shouldn’t be a threat to your relationship. You should be discussing these issues anyway and coming to an agreement on how to handle them. Leaving the ultimate decisions up to the courts is no more romantic, right?

That said, it’s important to ensure your prenup is enforceable. Under Arizona law, prenuptial agreements must be in writing and signed by both parties. Both parties must enter into the agreement voluntarily, without undue pressure or coercion. Each party should have a clear idea of the other party’s property and financial obligations. And, the agreement cannot be “unconscionable” or leave one spouse so poor that they qualify for public assistance.

What could make a prenuptial agreement unenforceable?

The main reasons a court could find against a written prenup are involuntariness, lack disclosure and unconscionability. Let’s look at each of these in turn.

Was the agreement truly voluntary by both parties? It’s essential that each of you has your own lawyer to protect your interests. This reduces the chance that a court would find the prenup wasn’t truly voluntary.

It’s also crucial to enter into the agreement substantially before the wedding. When one party signs a prenup just before the wedding, a court may find that they were under undue pressure. The closer you get to having a proverbial ink stain on the wedding dress, the less likely your prenup will be enforced. Your prenup doesn’t go into effect until you are married, so it is perfectly OK to sign it several months in advance.

Did either party withhold important information? The prenup may be unenforceable if one party can show they did not have a full understanding of the other person’s finances and debts. This problem can sometimes be overcome if the party signed a voluntary waiver expressly giving up any right to full disclosure, but it’s better if both parties are on the same page about each other’s assets, income and debts.

Is the agreement unconscionable? The courts will determine whether a prenuptial agreement is unconscionable, which basically means that a reasonable person’s conscience would be shocked at its unfairness. This is decided as of the time the agreement is signed.

Does the agreement deny sufficient spousal support? This question is decided at the time of divorce, if any. If the prenup reduces or eliminates spousal support that the spouse would otherwise receive, the agreement will not be upheld if it would mean that spouse is eligible for public assistance.

Before you agree to any prenup, it’s important to have an experienced Arizona lawyer draft or review it. This can help ensure your rights are protected and you understand what you are agreeing to.