ASK ANGIE^TM
By Angela Hallier, Esq.
Answers to your divorce and family law questions

Q Are Premarital Agreements binding in Arizona? What do they need to include?

A Premarital Agreements are contracts between prospective spouses in contemplation of marriage, which are effective upon marriage and - with rare exception - binding in the State of Arizona. To be valid, your agreement must:

1. Be in writing and signed by both parties;
2. Become effective upon your marriage; and
3. Be executed voluntarily by each party. To decrease the chance the agreement will be challenged at a later date, it should also:
4. Provide a fair and reasonable disclosure of the property and debts of each party, which is best achieved by attaching to the Agreement a list of each party's assets and debts; and
5. State that each party waives any right to disclosure of the other party’s property beyond that disclosed in the Agreement.

You have great latitude in determining the specific terms of your Agreement. It may include rights and obligations of you and your prospective spouse as to property either of you currently have or which is acquired during the marriage; the right to purchase, use, sell, transfer, exchange or otherwise control such property; how property will be divided upon separation, divorce or the death of either party; the modification or elimination of spousal support; the making of wills, trusts or other arrangements to carry out the provisions of the Agreement; ownership rights in and disposition of death benefits from any life insurance policy; or any other matter pertaining to you and your spouse which is not in violation of public policy or a statute imposing a criminal penalty. Issues regarding children, such as custody, parenting time and child support, are not appropriately included in a Premarital Agreement.

While not required, it is advisable that each party be represented by his or her own counsel to assist in the review, understanding and signing of the Agreement, even if one party pays for both attorneys. This is helpful in negating any future claim by your spouse that he or she did not understand the Agreement or did not enter into it willingly. It is also important that the Agreement not be entered into on the eve of the marriage. Ensuring that your Premarital Agreement is signed in plenty of time prior to the marriage assists in negating a future claim that the Agreement was coerced at the last minute. If there is a provision in your Agreement that modifies or eliminates spousal support in the event of legal separation or divorce, it will be binding unless enforcing the provision would cause one party to be eligible for public assistance. In that event, a court may go beyond the Agreement and require spousal maintenance to be paid. After marriage, a Premarital Agreement may be amended or revoked by written agreement signed by both parties. Also note that, while less common, a Post-Marital Agreement (a contract between current spouses which defines their rights to assets and debts), may also be enforceable.

If a Premarital Agreement is challenged, the party seeking to invalidate it has the burden to prove it should be set aside. In the rare circumstances that Premarital Agreements are not upheld, it is typically due to the same types of problems that make other types of contracts unenforceable, such as the contract was unconscionable (meaning that, given the circumstances at the time the Agreement was entered into, it was so one-sided as to oppress or unfairly surprise an innocent party); a party was under duress or coercion when it was signed; or it is not specific enough for the court to enforce.

It is always advisable to seek the counsel of a qualified attorney who can advise you specifically about your case. The information in this column is provided for general information only in the state of Arizona, is not specific to any one case and does not create an attorney-client relationship between the author and the reader. ©2003 - 2008 Hallier Law Firm PLC

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