Many residents of Phoenix have probably heard about prenuptial agreements and may have even learned about them from previous posts here. For many people, including those who have no plans of divorcing or separating, these agreements can be an important legal document which they may need to strongly consider negotiating with their future spouse and signing.
In Arizona, prenuptial agreements, or “prenups,” are legally referred to as premarital agreements. Like in most other states, premarital agreements are legally enforceable as long as they meet certain conditions. On a practical level, a premarital agreement must be in writing and signed by both parties. It is generally a good idea to also have language in the agreement stating that both parties either have discussed the agreement with their own attorneys or freely and voluntarily waive their opportunity to do so. Otherwise, a judge may set aside the agreement if the judge determines the agreement is unconscionable, that is, clearly unfair, and one of the people who signed the agreement did not have an accurate picture of the couple’s assets and debts.
Generally speaking, a couple may only craft a premarital agreement that will resolve property division issues in the event of a divorce or a separation. Likewise, the agreement can address issues that may arise upon the death of either spouse. Child custody and child support are ordinarily not valid subjects for a premarital agreement.
On the other hand, a premarital agreement can address alimony. However, the agreement cannot eliminate alimony if doing so would mean one of the parties will need to go on government assistance to make ends meet.