Arizona Guide to Pre-Marital Agreements

Arizona Guide to Pre-nups

Arizona Guide to Pre-nups

People who get married expect their marriage will last forever, but Arizona has one of the higher divorce rates in the United States, so many Arizona couples decide to make a pre-martial agreement.  It can decide how property and income will be divided if the marriage is dissolved or annulled.  This agreement must comply with all the statutory requirements of Sections 25-202 to 25-205 or the courts will not enforce it.

Elements of a Valid Agreement

In order to have a binding agreement, both parties must make a full disclosure of their finances to the other party.  Failure to disclose assets, while knowing the other party has little chance of finding these facts, could lead to the agreement being invalidated by the court.  In those circumstances, the court is likely to give favorable terms to the person who was cheated—the party against whom enforcement was sought.  The first step in planning a good pre-marital agreement is to be completely honest about finances.

Playing by the Rules

This contract must be voluntarily entered into by both parties.  If the non-enforcing party demonstrates that:

  • Their agreement was not voluntary;
  • It was unconscionable at the date of execution;
  • They were not given ‘fair and reasonable’ disclosure of the other parties debts; and
  • There was no intentional, explicit waiver of disclosure and they had no reasonable chance to get needed information.

The courts will generally not enforce the provisions of that agreement.

Terms prohibited by Pre-Marital Agreements

Arizona Law does not allow any provisions about legal decision making, parenting time, or child support in these agreements.  Their standard is far different from others:  “the best interests of the child” and those interests can’t be stipulated by their parents before the birth or adoption of children, or at any time.  If and only if the court finds the agreements entered into by the parties meets that standard, will it be enforced.

Spousal Support

If the provisions reduce or eliminate spousal support, and that spouse is able to support themselves without governmental assistance, the provisions will stand.  However, if the terms lead to the spouse needing financial assistance, the terms will be modified, so the government does not have to provide aid.  There is a policy that divorcing spouses can’t shift their responsibilities to the State of Arizona.

Power of the Courts

Because pre-marital agreements are contracts, the courts will use the common law of contracts to interpret and enforce them.  Courts hold that a contract is ‘unconscionable’ when the parties had unequal bargaining status:  one person was more ignorant, or under physical stress, while the other had much greater power, but chose to take advantage of the other.  It usually means that the difference was so vast that it would shock the conscience of an average person, or in some cases, the conscience of the court.  When the Arizona court finds a pre-marital agreement is unconscionable, it does so as a matter of law.

Conclusion

If a couple planning to marry is thinking about making a pre-marital agreement, they should get their own legal counsel. You should get independent legal advice about the agreement you and entering into. It has serious consequences and you will want to make sure you understand what you are signing and how it effects your personal situation.