Suppose you got married young in life, and at the time there was not much between you and your spouse in terms of assets, income, etc. Since there weren’t any assets between the two of you a prenuptial agreement seemed superfluous – besides, you were young, in love and full of ideals. Sometime later you started doing well and you started accumulating the fruits of success – a home, art work, jewelry, cars, and so on. Now maybe you have wondered should I be concerned about how any of this stuff might be divided if my spouse and I get divorced? Is there a way for me to protect my prized this or that? The answer is yes and the solution comes by way of a postnuptial agreement.
But don’t fall into the trap of thinking it is only for protection in the event of divorce. Many couples actually credit the postnuptial agreements with saving their marriages too. Arguing about money is one of the biggest problems in marriage. All too often it leads to divorce but there is the chance that a postnuptial agreement might also halt those arguments because it puts into writing who has or gets what if things go south. That kind of security ends doubt and concerns between spouses regarding their financial fitness and leaves couples to worry about other things hopefully less stressful.
The State of Arizona recognizes postnuptial agreements as valid by virtue of judicial precedent, unlike prenuptials, which are governed by statute. Basically a postnuptial is considered the same way a contract is – so long as certain elements are present, a postnuptial agreement will be held valid and enforceable if a couple divorces. Making sure those elements are present in the postnuptial contract is critical and demands the watchful eye of an experienced family law attorney. The worst thing that can happen is to have a postnuptial agreement drafted without the help of an attorney, and wind up having the document challenged and thrown out in court.
As with other important contracts, a postnuptial needs to be in writing and signed by both parties. It should also be notarized. The agreement also needs to be fair and equitable. Both parties need to be able to agree to the terms of the contract. If those elements are there then a married couple is free to split their assets accordingly. They can put the house in one person’s name, hold the jewelry and art in the other’s, and split or not split the amounts of income earned by one spouse or the other. Just remember, it should be fair.
If the postnuptial agreement is challenged it is very important that the contract be seen as fair. This is where and why it really helps to have a qualified family law attorney help you – if your spouse challenges the agreement the burden is on you to prove it is fair, by a clear and convincing evidence standard. The standard contractual challenges also apply to postnuptial agreements like fraud, duress, and unconscionability. To survive these challenges it is imperative that you have a great family law attorney make sure the postnuptial will survive judicial scrutiny.
Whether you are looking to protect yourself in a worst case scenario, or just trying to settle some financial qualms with your spouse, a postnuptial agreement can be an effective and strong tool to bring peace of mind and financial security.
To further discuss family law, please contact Kaine Fisher at kfisher@roselawgroup.com or 480-240-5649
