In Arizona, prenuptial agreements are governed by the Arizona Uniform Premarital Agreement Act as set forth in Arizona Revised Statutes § 25-201 through § 25-205. The statutes, in part, provide that the agreement must be made in writing, signed voluntarily by both parties, and the parties involved provide a fair and reasonable disclosure of property and financial obligations, or at the very least, included a clause that expressly waives any rights to the disclosure requirement. A properly drafted agreement is effective upon marriage and does not require any consideration (exchange between the parties in form of money or other beneficial promise).
“Voluntary” has a specific legal meaning: the person against whom enforcement of the agreement is sought must have had independent legal counsel before signing or must have waived that right. To waive the right, the person must have received complete written information about the terms and effect of the agreement, and signed a separate document acknowledging receipt of that information and waiving the right to an attorney.
The agreement is not enforceable if the party against whom enforcement is sought proves that the party did not execute the agreement voluntarily, the agreement is against public policy, or that the agreement was unconscionable when it was executed and before execution of the agreement that party:
- Was not provided a fair and reasonable disclosure of the property and the financial obligations of the other party.
- Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
- Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
“Unconscionable” means that enforcing the agreement would be very unfair. An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
“Against public policy” means something that violates the interests of society, such as enforcing a prenuptial agreement that would cause one spouse to become homeless. If a provision of a premarital agreement modifies or eliminates one spouse’s ability to seek spousal maintenance or modify it, and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support maintenance to the extent necessary to avoid that eligibility.
Prenuptial agreements regarding children, or future children, cannot be waived or enforced. In Arizona, the standard with respect to custody and visitation is always the best interest of the children.
The best way to make sure a prenuptial agreement will be enforceable in Arizona is to have it prepared by a qualified Arizona family law attorney well in advance of the proposed wedding, and to be sure the person being asked to sign it chooses his or her own attorney to review it.
Preparation and review of premarital or postnuptial agreements are extremely important and you need experienced representation. To learn more about how Shaffer Family Law experienced family law attorneys can help you, contact Shaffer Family Law online or call (480) 470-3030.