Prenuptial Agreements have a stigma that’s been passed down for generations. Times change. This is no longer a luxury for the rich. Most likely, you and your fiancé both work, own your own stuff, have your own credit cards and loans. Even after a short-term marriage, Courts often face a tangled knot in trying to figure out what was yours and what was your spouse’s prior to marriage. Worse, what was yours prior to the marriage can easily be transformed into a community asset if you put money into it during the marriage. This knot can often result in the Court throwing up its hands and dividing everything.
Getting a prenuptial agreement isn’t insurance against divorce–it’s insurance against life. It’s a smart decision on multiple levels. A Prenup can protect the stuff you own, help you understand your ‘marital’ financial status before getting married, protect yourself from debts that aren’t yours, and if it doesn’t work out in the end, save yourself thousands in attorney fees.
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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 Circumstances change during marriage, and terms in a prenup may become outdated.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.
A prenup is like car insurance. You buy it hoping that you never have to use it. But if you have to use it, you are glad you have it. A prenup protects what you’ve accumulated prior to marriage and protect what you earn during marriage.
A prenup guards against long, drawn-out divorce proceedings. In our experience, a divorce case with a prenup almost always takes just a few months. Cases involving the same issues decided in prenup often can take up to a year to decide.
A prenup serves several purposes:
No, but we strongly recommend you have one. We have seen very intelligent try to do prenups on their own and make mistakes that cause the prenup to be invalidated.
No. Attorneys are prohibited in Arizona from representing both parties.
Yes. We recommend it because if both parties are represented the prenuptial agreement is much more likely to be upheld. We especially recommend this where one spouse is significantly older, more educated, or wealthier than the other fiancé . These are cases where one spouse could in the divorce proceedings claim that he or she did not understand what they were signing.
It is not required, but it is strongly recommended.
First, both parties having an attorney makes it more likely a prenuptial agreement will be upheld if challenged in a divorce proceeding. Second, even if when a full agreement is reached beforehand, having lawyers review and negotiate the language of the agreement can protect both parties’ interests.
Attorneys helping with a prenup do several tasks: (1) They meet with the client to determine what the client wants, (2) they disclose their client’s financial information to the other side, (3) they negotiate with the other party or their attorney, and (4) they draft up the prenuptial agreement or review and edit the prenuptial agreement drafted by opposing counsel.
We do not because the biggest cost in a prenuptial agreement is the negotiation, including negotiating what language will be used in the agreement. How long negotiation will take is an unknown factor when a fee agreement is signed. For this reason, Best Law Firm works on an hourly rate.
It is far more expensive, on average, to hire an attorney for divorce litigation than it is to hire an attorney for a prenup. In our experience, prenups cost anywhere from one-third to one-tenth the cost of litigating these issues in a divorce.
The key word is agreement. If your spouse-to-be refuses to sign, there is no agreement, which means there is no prenup.
We cannot predict how your fiancee will react. You are in a better position to answer that than we are. That said, we believe that taking a tactful approach to asking someone to sign a prenuptial agreement might help them be more open to agreeing to one.
The biggest fear most people when they are approached about signing prenup is a fear that their partner is uncertain about the marriage. When approaching a spouse about a prenup, it is important to reassure them of your love form them and commitment to them.
Most people entering a marriage intend to make a lifetime commitment. It is well-known that half of all marriage end in divorce, yet only ten percent (10%) of the population believes that they will ever be divorced. That means for forty percent (40%) of people, their divorce takes them by surprise.
We may be divorce attorneys, but we want marriages to succeed. But we also believe it is appropriate and smart to plan for the “what ifs” in life. As the old saying goes, an ounce of prevention is worth a pound of cure. Working these differences now saves time, stress, and money should divorce occur.
No. While a prenup contemplates what will happen in the event of a divorce, it does not mean that prenups encourage divorce. In fact, just the opposite may be true.
A prenup can guard against a divorce filed solely to protect one spouse from the financial consequences of the other. We commonly have people approach us seeking divorces because they are concerned about their spouse’s financial decisions having a negative financial effect on them because of Arizona’s community property laws. Some common instances are when a spouse has gambling addiction, is acquiring excessive debt, or is running a business into the ground. In those instances, we have recommended postnups (a marital agreement, similar to a pre-nup, signed after marriage), much to the relief of the worried spouse. We worry most people in those situations are not advised about the possibility of a postnup and may divorce as a means of protecting themselves financially. A pre-nup, therefore, deals with this question before it even arises in a marriage.
Property acquired before the marriage or property received via gift and inheritance during the marriage are not community property—meaning that property still belong 100% to the spouse who acquired it. But if that property gets “commingled” with community property, it loses a sole-and-separate character and can become community. This, of course, means the property belongs equally to each spouse. There will be an exception if the sole-and-separate property can be “traced.”
Some common examples of sole-and-separate property becoming community property:
Disclosure means that you provide the other party with the documents they need to be fully informed about your situation.
Disclosure includes, but is not limited to, bank statements, real estate holdings, retirement accounts, pensions, stocks, and earnings, including taxes and pay stubs. There should be a full disclosure.
If disclosure is not complete, your fiancé will have an argument that the prenup should be invalidated because they did not have a full understanding of your assets. Without complete disclosure, they cannot make a “knowing” waiver of their rights in a prenuptial agreement.
We do not recommend it. Such a provision will likely be found to be unconscionable and may invalidate the prenup.
Arizona allows for marital agreements, so the prenup can actually be signed after the wedding. It was just then become a postnup (But postnups may be held to a different legal standard than prenups). But generally, a prenup should be signed a few weeks in advance just to guard against any claims of coercion.
It should be. Generally, if it is valid in the state where it is executed, most states will recognize the prenuptial agreement.
No. Most states have adopted the Universal Premarital Agreement Act, including Arizona. But even within the states that have adopted the UPAA, the laws vary. For instance, it is our understanding the California law now requires both parties to a prenup to have an attorney and for the prenup to be signed seven (7) days prior to the wedding. Arizona has neither requirement.
Schedule your hour consultation and speak with one of our experienced attorneys on how to get started and get a game plan.
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