What is a Post-Nuptial Agreement?
In essence, a post-nuptial agreement is a contract signed by couples who are already married (as opposed to engaged) or even divorced. Essentially, this document describes agreements between spouses after their marriage and covers many of the same topics as a general prenuptial agreement. Arizona is one of only 16 states in the country to recognize post-nuptial agreements along with California, Florida, Illinois, Delaware, Maine, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, and Washington .
Post-nuptial agreements refer to a list of instructions set up between husband and wife and it replaces or negates any oral and/or verbal agreements that the couple may have had for a given period of time. Essentially, this document provides a map to how property and finances are divided and handled by one another in the event of divorce, incapacitation, or the passing of one spouse. Additionally, the document addresses issues such as spousal support, custody of children, and community and separate property.
Legal Requirements in Arizona
A post-nuptial agreement in Arizona can be a legal document, and an enforceable contract, with some specific features. All post-nuptial agreements in Arizona must be in writing and signed by both spouses. In addition, after looking at the statute that governs post-nuptial agreements (A.R.S. § 25-317), the requirements for a valid post-nuptial agreement closely resemble those for a prenuptial agreement.
For example, while the statute is clear that a post-nuptial agreement does not require consideration, although it can. Instead, the statute requires a "full and fair disclosure of the assets and liabilities of each party." Whether or not this requirement is met will depend in part on the particular facts of each case and will be a factual issue. As with a prenuptial agreement, once both parties have signed, a third person should notarize each party’s signature.
Benefits of Post-Nuptial Agreements
Post-nuptial agreements in Arizona can prove beneficial for a number of reasons. Post-nup agreements can help protect the assets and debts of both spouses in the unfortunate event of a divorce. They customize the distribution of a couple’s assets based on their unique situation, allowing them a more flexible way to deal with assets and debts than Arizona’s community property laws allow. They also create clarity about how assets will be distributed and debt will be handled if the marriage ends in separation or divorce. Another benefit of a post-nuptial agreement is that it can keep creditors from going after one spouse’s separate property to pay off debts of the other spouse. A post-nup can also eliminate disputes over spousal maintenance by setting parameters on what a court would find fair. This protection can eliminate problems that may arise at the end of a marriage where spouses are arguing over debts or assets that one spouse feels have been "mismanaged" by the other party. This essentially protects both spouses in the event of a relationship ending, because it can eliminate some of the contentiousness that occurs.
Limitations and Considerations
While post-nuptial agreements can be a useful tool for Arizona couples, there are limitations and considerations that should be carefully weighed before proceeding with one. The enforceability of a post-nuptial agreement largely hinges on principles of fairness and voluntariness. If either spouse feels pressured into signing the agreement, or if terms are unfairly one-sided, it can prevent the agreement from being enforceable. Timing is also an important consideration. A post-nuptial agreement that is signed immediately after a couple gets married, for example, may raise questions later on about whether the agreement was entered into voluntarily. Further, like a prenuptial agreement, Arizona law requires that both parties sign the agreement while represented by independent counsel. Post-nuptial agreements may also have implications for estate planning. For instance, failure to account for a post-nuptial agreement when altering estate plan documents could lead to unintentionally disinheriting "step" children.
Common Clauses and Provisions
Standard clauses and provisions typically included in Arizona post-nuptial agreements generally relate to asset division among the parties, alimony, and inheritance rights.
Asset Division – Parties to a post-nuptial agreement in Arizona are free to contract with each other regarding the division of your separate and joint assets in the event you no longer the ability to get along. Arizona law states that spouses may enter into an agreement that specifies the destruction, severance, or forfeiture within the period of presumptive death of a playing card or other item, and that is valid and enforceable among the parties. In other words, spouses may designate which spouse receives certain items of property as long as the property has some value, no matter how small .
Alimony – Spouses may waive their right to spousal support and eliminate the steps Arizona courts must take to determine that support. The waiving spouse must have made a fair disclosure of all property or financial obligations, and the terms of the agreement must be conscionable.
Inheritance – Parties to a post-nuptial agreement may elect to remove the right of a spouse to inherit from the other spouse by will or by probate. However, a spouse cannot opt out of the right to receive life insurance, retirement fund, divorce settlements, or the right to receive the elective share, which is the greater of one-half of community property assets or the statutory amount set forth by Arizona law.
Modification and Enforcement
Like any other contract, the terms of a post-nuptial agreement can be modified or even taken away by the courts. If one party to the agreement wishes to challenge certain of its provisions, they may petition the court to do so. Courts in Arizona tend to defer to post-nuptial agreements, but they will step in to modify or nullify such agreements if they find that it is in the best interests of either party.
For example, post-nuptial agreements are often created in situations where one spouse may have a greater earning capacity than another. If an agreement made following a recent marriage seeks to limit spousal support when the marriage was never expected to last long enough for that provision to be practical, it may be challenged if the courts decide that the agreement creates undue hardship on the other spouse. Another example of a provision that may be removed or modified by the courts is a support provision that is now determined to be disproportionate to a changed financial reality such as disability, loss of a job or a demotion.
To initiate a challenge to a post-nuptial agreement, the person that wishes to change the agreement must file their petition with the courts. The petitioner has a strong burden of proof to show that the agreement can’t stand as written, and this challenge often requires full, intimate knowledge of the law. An experienced family law attorney that understands how Arizona divorce law operates can help to ensure that justice is done, either under the terms of the existing agreement or by making final changes to the agreement terms set forth by the court. In your family law matter, it pays to always be on solid legal ground with a family law attorney.
Finding Legal Assistance
It is essential to seek legal assistance when negotiating and drafting a post-nuptial agreement. A qualified family law attorney can help navigate the complexities of Arizona divorce law and ensure that the agreement is in the best interest of both parties. The attorney will review the details of the agreement and provide recommendations for changes or additions, and ensure that all relevant information is disclosed. This process will help limit the chance that the agreement can be contested in court.
In some cases , the lawyer for each party may negotiate favorable terms and conditions that are more beneficial to their client. However, this action could lead to trouble if, in the future, the other party believes that the agreement was not fair, and therefore not enforceable. That is why it is important to remember that a post-nuptial agreement is a contract, and one that should be drafted, reviewed and negotiated by an objective legal professional.