There are good reasons to get a prenup – a prenuptial agreement, especially if you have significant assets or have children from a previous relationship. You have interests you need to protect in the event your marriage ends in divorce. It’s simply a matter of risk management, and it involves topics you and your fiancé or fiancée should be discussing anyway.
If you decide to have a prenup, it’s important to ensure that it would be enforceable. In Arizona, prenuptial agreements must be in writing and must be signed by both parties. Beyond that, they must avoid several legal pitfalls:
Lack of voluntariness/coercion
A prenup is not enforceable if one party did not enter into the agreement voluntarily. That is to say, they felt pressured or coerced into signing. The courts may find that one party felt coerced if, for example, the other party had an attorney to advise them, but they did not. Or, a court might rule that the agreement was not voluntary if it was signed immediately before the wedding, meaning there was significant time pressure.
Unconscionability and lack of disclosure
A prenup is also not enforceable if it is unconscionable. “Unconscionable” essentially means that the agreement is so one-sided and unfair that it shocks the judge’s conscience. This could especially be the case when:
- One party never received a fair and reasonable disclosure of the other party’s property and financial obligations and they didn’t waive, in writing, their right to this disclosure
- One party did not have and reasonably could not have had adequate knowledge of the other party’s property and financial obligations
Elimination of spousal support, in certain circumstances
Parties are generally free to enter into prenups that limit or eliminate either party’s right to receive spousal support that they would otherwise receive. However, if the person who would receive spousal support if not for the prenup would end up on public assistance, the court may decide that that party should receive spousal support after all, notwithstanding the prenup. This decision is made at the time of the dissolution of the marriage.
If you are interested in a prenup, start with a general talk about your finances and expectations. Once you have your fiancé or fiancée’s general agreement, talk to an experienced family law attorney about drafting one that’s right for you.