Understanding the Benefits and Limits of a Prenuptial Agreement

Nobody likes to think about divorce when starting a marriage, but it is a realistic possibility that must be considered. Many couples marry later in life after having accumulated some wealth and after having children from a prior marriage. Entering into a prenuptial agreement is a way to plan for an orderly disposition of property and provision of support in the event a divorce should occur. It is especially important to consider a prenup if you would like to protect family property and wealth or to give certain property to children from a prior marriage or to other family members.

An Arizona prenuptial agreement can cover a great many aspects of wealth protection and distribution in the event of divorce or separation. The spouses may come to terms on such issues as:

• Division of any property acquired by either or both of them upon divorce or death of one of the spouses
• The right to buy, sell or encumber property
• Terms of spousal support
• Ownership of and beneficiary rights in life insurance properties
• Disposition of the marital residence in the event of divorce
• Division of debts and liabilities
• Division of business interests
• Retirement distributions

The effect of these provisions is to avoid the operation of Arizona’s community property law, which otherwise divides marital property equally upon divorce.

However, there are certain rights and interests that cannot be controlled by a prenup. The court will not enforce any provision that attempts to restrict parenting time, legal decision-making authority or child support. Determinations of issues related to children are reserved for the court. The court decides what is in the best interests of the children in the event of a divorce.

In addition, a court will not enforce a prenuptial agreement that is unfair, unduly favors one party or appears to have been entered as the result of fraud, misrepresentation or duress.

It is important that each party consult with a knowledgeable prenuptial agreement attorney to ensure that they understand the agreement and that it is fair to both of them. A prenuptial agreement should be drafted well before the wedding so that both parties have time to think about its contents and to request any desired changes.

If you are considering a prenuptial agreement, the experienced attorneys at Clark & Schloss Family Law, P.C. in Scottsdale, Arizona can help with drafting, review and negotiation. For a consultation, call us at 602-789-3497 or contact us online.