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Ask a family law attorney: What a’ prenup’ can and can’t do

Posted by   /  February 4, 2020  /  No Comments

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By Kaine Fisher, Rose Law Group partner and director of Family Law, and Audra Petrolle, family law attorney

I’m just getting engaged and want to propose a prenuptial agreement. Are there any assets that legally in Arizona I cannot protect?” 

Arizona is a community property state, meaning that any income or property acquired during a marriage is generally considered joint marital property. In the case of divorce, it is treated the same and is generally divided equally. Spouses that prefer to change these “default rules” may want to enter into a prenuptial agreement (prenup), which would allow them to specify how they would prefer to divide their assets in the case of divorce.

While a prenup gives spouses more control over the outcome of a potential divorce, there are some situations and assets which a prenup will not cover. Knowing about these could help take some strain off both spouses in the case of a divorce. 

1. Courts do not always enforce provisions surrendering spousal support. 

Generally, spouses may waive the right to spousal support in a prenup. However, if doing so would leave one spouse so impoverished as to be on welfare programs after the divorce, the court may impose some spousal support irrespective of the waiver. 

2. A prenuptial agreement may not protect assets that were not properly disclosed.

In drafting a prenup, both spouses must fairly and reasonably disclose all assets and financial obligations. If not, courts may decide that the prenup does not protect those undisclosed assets. 

3. A prenuptial agreement cannot determine child-related issues. 

Child-related issues such as legal decision-making authority and parenting time and child support cannot be governed by a prenup. Instead, courts will look to what is in the best interest of the child in making such determinations.  

4. A prenuptial agreement can’t violate public policy or contract to do something criminal or illegal.  

Courts are unlikely to enforce provisions of prenuptial agreements that could produce negative results for society, such as provisions that encourage divorce or provisions agreeing to commit a crime.  

Prenuptial agreements can be challenging to draft, but remembering these four exceptions and contacting an attorney can help the process go smoother and result in an enforceable agreement.

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