What a Premarital Agreement Can and Cannot Do in Arizona

A premarital agreement — also known as a “prenup” — is a contract providing in advance for how property and debts will be distributed in case of a divorce. This type of agreement can save a couple a significant amount of time and money that would be spent on litigation. However, while there are many things that a premarital agreement can accomplish, there are also some things it cannot.

A valid and enforceable premarital agreement can do the following:

• Determine who will keep the marital home
• Specify separate property versus marital property
• Allocate debts to the parties
• Decide whether a spouse will be responsible for paying spousal maintenance

If you are remarrying and have children from a former marriage, you can also use a premarital agreement as part of your estate planning. In a prenup, a spouse can agree to give up his or her right to an intestate share of the other’s estate. Spouses can also agree that specific assets, such as heirlooms, will remain in their immediate family after divorce.

However, a premarital agreement cannot decide child custody, determine support or resolve issues concerning parenting time. Parents can work out these matters between themselves during a divorce or else a court will evaluate the circumstances and render a decision.

While there is great latitude as to what a premarital agreement can include, it cannot contain clauses that require a spouse to perform specific tasks or that impose non-financial duties. Such clauses will be found unenforceable or, in some cases, the agreement could be thrown out in its entirety.

In addition, a prenup must meet certain legal criteria to be enforceable under Arizona law. The agreement must be in writing and signed by both parties. It will be considered invalid if it was executed involuntarily, was unconscionable or did not provide fair and reasonable financial disclosure to the other spouse.

If you’re considering entering into a premarital agreement, an experienced attorney can help ensure your rights are adequately protected. At Clark & Schloss Family Law, P.C., we provide skilled counsel and diligent representation for a wide variety of matrimonial matters in Arizona. Call 602-789-3497 or contact us online to schedule a consultation at our Scottsdale office.