When Is a Postnuptial Agreement Valid in Arizona?

Sometimes during the course of a marriage, concerns arise between spouses about how their financial assets would be divided in the event of a divorce. For couples who did not elect to enter into a prenuptial agreement before a marriage, a postnuptial agreement may be to their advantage. Arizona law recognizes postnuptial agreements, but they are subject to close scrutiny by the courts.

A postnuptial agreement is a legally binding contract that allows a married couple to specify that certain assets are owned by each partner during the marriage and in a divorce. Unanticipated events may favor the signing of a postnuptial agreement. For example, one spouse may have built up a business of which he or she wants to retain ownership. Postnups can address ownership of wide range of assets as well as provide for a support award to either spouse upon a divorce. The only thing they cannot do is make binding agreements about child custody or child support, since these are subject to court approval.

Postnuptial agreements generally are considered valid and enforceable in Arizona if they are properly executed. If a postnup is entered into before either spouse is contemplating divorce, then the agreement will likely be enforceable as long as it meets other traditional contract requirements, such as that it be in writing, entered into voluntarily and signed by both spouses.

However, Arizona courts might not recognize a postnup that appears to have been entered in contemplation of divorce. Arizona courts have reasoned that once one or both of the spouses is contemplating divorce, it is the responsibility of the courts to evaluate whether the division of property is fair and equitable for both spouses. In short, the division of property called for in the agreement cannot circumvent Arizona’s community property law, which is intended to protect the spouse with lesser earnings or resources.

Before undertaking the time and expense of drafting and negotiating a postnup, ask an experienced Arizona divorce attorney to evaluate whether a court is likely to enforce it in your circumstances. An attorney can draft an agreement that calls for a financial settlement that a court would find fair and equitable.

At Clark and Schloss Family Law, P.C. in Scottsdale, we often work with Arizona spouses who are navigating financial issues in their marriage and are considering the option of a postnuptial agreement. If you have questions about whether such an agreement may be beneficial for you, please call our office at 602-789-3497 or contact us online anytime.