A growing number of marriages in Arizona are second or subsequent marriages, and these relationships often involve substantial property division issues, since both husband and wife have substantial assets and debts, and inheritance issues, due to the presence of stepchildren. Left unattended, these matters often lead to protracted and expensive litigation in family or probate court, but a premarital agreement can deal with these issues cheaply, quickly, effectively, and fairly, at least in most cases.
Furthermore, Arizona and most other American jurisdictions have adopted the Uniform Premarital and Marital Agreements Act, so even if husband and wife marry in Arizona and divorce in another state, the premarital agreement rules are largely the same.
Making a Prenuptial Agreement
While American courts are open to everybody, our system encourages alternative dispute resolution, such as divorce mediation, whenever possible. It is better if litigants can bypass all formal systems and resolve disputes among themselves, and it is better still if these disputes are nipped in the bud. Therefore, premarital agreements may address a variety of matters, including:
- Property Division: In many second marriages, retirement account holders are eager to protect their financial nest eggs which may have already been divided once in a prior divorce.
- Alimony: Many judges will approve low caps on both the amount and duration of payments, and some judges will even approve spousal support waivers in many cases.
- Inheritance: In the absence of a stepparent adoption, stepchildren are usually not entitled to inherit anything from their stepparents, and only a prenuptial agreement, as well as an accompanying will, can change this situation.
Child custody and support provisions are not enforceable, as any limitations or conditions are against public policy. Judges must decide these matters based on the best interests of the children, not the best interests of the parents.
Breaking a Premarital Agreement
Despite the strong legal presumption in favor of spousal agreements, these contracts are not ironclad. However, challengers often face uphill battles, because they must establish:
- Unconscionability: Agreements are unconscionable if they are so one-sided that it shocks the consciousness, primarily because one spouse took advantage of the other one. Additionally, the challenging party must establish that the agreement was unconscionable when it was made.
- Lack of Information: If one spouse withholds data from another spouse, the challenging spouse must prove both that the information was material and that there was no other way to obtain it other than through the other spouse’s voluntary disclosure.
- Involuntary: Mere pressure to sign, and perhaps even a “sign or else” ultimatum, are usually not enough to establish involuntariness under the UPMAA.
Since most premarital agreements have severability clauses, if one part is overturned, the rest remains in effect, at least in most cases.
Count On an Experienced Attorney
Premarital agreements can be the stitch in time that saves nine. For a free consultation with an experienced family law attorney in Tempe, contact the Law Office of Ronald L. Kossack. Convenient payment plans are available.