Postnuptial Agreements
What is a Postnuptial Agreement?
It is a contract between a married couple that decides how their marital property will be divided. In other words, a postnup is a prenup signed after the wedding.
About Postnuptial Agreements
- To have separate finances while married. Every married couple argues about finances. Many marriages end over financial disputes often when one party worries about the impact the other spouse’s decisions are having on their finances. Postnups may not be a cure-all for those situations, but we have seen them reduce that conflict by separating out the finances. In at least one case, we have even seen the postnup save the marriage.
- To update a prenup. Circumstances change during marriage, and terms in a prenup may become outdated. When life changes, the prenup should be updated.
- To protect one spouse’s inheritance. While an inheritance is not community property when it is inherited, it can easily become community property by accident. For example, placing an inheritance into a joint bank account may make it community property. A postnup can set up boundaries to ensure the money one spouse inherits remains their money after a divorce.
- To do what should have been done in the first place. Because of the stigma associated with prenups, some people would rather leave themselves unprotected than have that awkward conversation. But now that they are married, they may find themselves more able to broach the topic of a postnup. Postnups have less social stigma than prenups, and are, therefore, easier to discuss while affording oneself similar protections.
- Marital Community – Property belonging to both parties of the marriage. Unless a prenup is in place, a marital community is automatically started when a party marries. The marital community lasts until the date of service. A postnup can also alter the nature of the marital community.
- Community Property – Arizona’s law that any property or debt acquired by either spouse during the marriage belongs half to one spouse and half to the other, regardless of how it is titled. Exceptions include property owned prior to marriage, property acquired by gift or inheritance, and property in which one spouse waives their interest (most commonly when a spouse signs a Disclaimer Deed as part of a real estate transaction).
- Sole and Separate Property – Property that belongs to only one of the spouses.
- Commingle – An account or asset in which both community funds and sole and separate funds are either placed or used to purchase the property. In those instances, the asset is considered to be community unless the objecting can “trace” out the sole and separate property.
- Asset – Property that is considered to have value.
- Debt – Something that is owed; an obligation.
- Prenuptial Agreement – An agreement entered into prior to marriage that agrees on how to divide the property during a divorce or decides to which property certain will belong during marriage.
- Postnuptial Agreement – An agreement entered into during the marriage. Similar to a prenuptial agreement, the postnuptial agreement sets forth how to divide the property during a divorce or decides to which property certain will belong during marriage.
- Real Property – Any type of real estate, most commonly the marital residence, but it can also include lots, cabins, condos, rentals, and any other property attached to land.
- Constructive disclosure – Where no disclosure takes place, the Court can consider whether the spouse challenging the prenup had sufficient disclosure by happenstance to make his or her agreement “voluntarily and knowing.” In one Arizona case, a wife who worked in her husband’s pizza business prior to marriage was found to have “constructive disclosure” of the business’s value.
- Date of Service – The date the responding party is served with the divorce paperwork the petitioning spouse filed. So long as the divorce is finalized, the date of service becomes the date the marital community terminates.
- Disclaimer deed – A real estate document in which a person legally gives up all rights to a property. This is used when the person signing the document has no prior ownership interest in the property. This is most commonly used when a house is being purchased in one spouse’s name alone, usually done because one spouse has better credit. In those cases, the title company will have the other spouse sign a Disclaimer Deed. It is very common that the signed who signed it forgets they even signed it and does not learn that they gave up their interest in the house until after the divorce.
- Quit Claim Deed – A real estate document in which a person legally gives up all rights to a property. This is used when the person signing the document had a prior ownership interest in the property.
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