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What Can and Can’t Be Included in an Arizona Prenup?

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Prenuptial agreements are practical legal tools that are often misunderstood. Used by couples planning to marry, a “prenup” can protect personal assets and shape their financial future.

An experienced family law attorney can explain how Arizona’s community property law impacts prenuptial agreements. In addition, the couple can learn how a carefully crafted document will benefit their relationship.

Understanding the Legal Foundation of Prenuptial Agreements

Arizona has a Uniform Prenuptial Agreement Act that sets out the basic requirements of the agreement:

  1. A prenup must be in writing
  2. A prenup must be signed by both parties
  3. No additional consideration (such as an item of value) is needed to make it enforceable
  4. The agreement takes effect when the couple marries

Entering into a prenuptial agreement voluntarily is essential. Being coerced or pressured into signing an agreement, particularly under the duress of time constraints, can result in the agreement being thrown out by a court.

The appropriate approach is to discuss the intent and contents of a prenup months in advance, including having it reviewed by attorneys for each party.

To make a prenup enforceable, full financial disclosure must be part of the process. Similar to signing an agreement under duress, a judge can determine that inadequate disclosure of income and debts can render a prenup invalid. However a couple can agree in writing to waive the requirement.  

What to Include in an Arizona Prenup

Couples have flexibility to structure the financial terms of their marriage, and a prenuptial agreement outlines the limits of things like spousal maintenance and rights to property held before the marriage, including debt, earnings, real estate, and assets. 

Objectives for a prenuptial agreement:

  1. Prior property protection. This agreement can specify which assets remain separate, how marital assets (jointly owned) will be divided, and how other assets like business ownership is handled. These rules apply most often to wealthy individuals and couples.
  2. Debt responsibility. Debt is often a common source of conflict in relationships. A prenuptial agreement can prevent one spouse from becoming liable for the other’s debts. This is particularly important when one partner enters the relationship with significant debt.
  3. Financial maintenance. In the event of divorce, the lower-earning spouse is usually awarded financial maintenance, or alimony. In Arizona, couples may waive spousal maintenance, but the prenuptial agreement must be carefully crafted to make it hold up in court. 
  4. Future planning. Estate planning, or plans for the distribution of assets after death, are often part of prenup agreements. This aspect of the prenup can provide for children from a prior marriage or keep inherited assets separate from jointly owned assets.
  5. Everyday finances. Aspects of everyday finances such as bill paying, money management, and large purchases can be laid out in a prenup. A sunset clause is often included to end the agreement on a specific date. 

What Your Prenup Should Not Include

Arizona courts will not enforce the following when included in a prenup:

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  1. Parenting and support. Most aspects of child support and visitation are not enforceable by a prenup. Custody and other family court matters are handled by the appropriate court. 
  2. Lifestyle clauses. Prenup agreements that include clauses governing one spouse’s appearance, weight, or penalty for infidelity are not enforceable. Broadly, any provisions that attempt to enforce behavior or regulate non-financial aspects of the relationship should not be included.
  3. Unfairness. A prenup must be fair and reasonable at the time it is signed as well as at the time of divorce, or it may be deemed unconscionable. A judge may throw out an agreement that leaves one spouse financially disadvantaged. 

The Importance of Legal Review

When considering a prenup, each spouse should have their own attorney to consult with and review the agreement. Webster Family Law can ensure that the prenup reflects the reality of the financial situation for each spouse and that the document will stand up to legal challenge. Call for a consultation that will clarify what is appropriate for your prenuptial agreement.