The Requirements for Enforceable Prenuptial Agreements

Many engaged couples choose to sign a Prenuptial Agreement (“Prenup”) before they wed as it’s an excellent way to protect any of their respective assets owned prior to marriage, as well as income and assets acquired during the marriage, in the event of a divorce.  Prenups can prove to be invaluable in protecting yourself and your fiancé, so it’s important to ensure the Prenup you sign has been prepared in compliance with local laws and requirements.

For a Prenuptial Agreement to be enforceable in the state of Arizona, there are several requirements that must be met.  Understanding and adhering to those requirements during the preparation and execution of a Prenup will help you secure a rock-solid, enforceable agreement.

How a Prenuptial Agreement Can Be Contested

In the event of a future divorce, your Prenup is a binding enforceable contract between the parties and will be referenced by the parties and the Court as a guide for issues such as the division of assets or spousal maintenance will be handled.

One of the best ways to be sure you are preparing Prenup that meets all legal requirements is to understand the ways in which it can be challenged in the event of a divorce.

If an individual wants to dispute the validity of a Prenup, they will bear the burden of proving it to be invalid.  Under A.R.S. § 25-202 (C), a Prenup is not enforceable if the disputing party proves:

1. That they did not execute or sign the Prenup voluntarily; or
2. The Prenup was unconscionable when it was executed and before it was signed:
   1. They were not provided with fair and reasonable disclosure concerning the assets and debts of the other party;
   2. they did not voluntarily and expressly waive, in writing, their right to any further disclosure of the other party’s assets and debts beyond what was disclosed with the Prenup; or
   3. they did not have, or reasonably could not have had, an adequate knowledge of the assets and debts of the other party.

In simpler terms, the question of whether a Prenup is enforceable come down to three (3) issues in almost all cases:

1. Disclosure, i.e., was adequate disclosure or a waiver of that disclosure of assets and debts done
2. Voluntary/timing, i.e., did they have time to retain counsel to review it with them, ask questions and get further disclosures, or otherwise negotiate the terms, or was it forced upon them at the last minute? and
3. Knowledge/review, i.e., was there enough time given to review it, or was it done at the last minute on the eve of the wedding? Were they given an opportunity to consult with an independent attorney, or did they review it with an attorney, etc.?

Most of these issues can be prevented with proper drafting of the Prenup itself, including both adequate and full disclosure of assets and debts, as well as waiver language, along with utilizing best practices for the execution of a Prenup.

Best practices for creating an enforceable Prenup:

The Prenuptial Agreement should be discussed and prepared well in advance of the wedding

Technically, a Prenuptial Agreement can be signed any time prior to marriage, up through the day before the wedding. However, it is strongly recommended that the agreement is discussed, drafted and presented to the other party at least thirty (30) days before the marriage is scheduled to take place.

That timeframe will allow each party a chance to retain counsel and thoroughly review the Prenup prior to signing, and avoid many of the issues listed above where the Prenup could possibly be held as invalid – just when you need it most: at the time of divorce.

Each Party *should* (really, must) retain and consult with their own independent lawyer to review the Prenuptial Agreement and disclosures prior to signing

Although it is not explicitly required under Arizona law for both parties to consult with their own attorney prior to signing a Prenup, it is almost essential that each party does if you want to ensure that the Prenup will be valid and enforceable at the time of a future divorce.  First, to ensure that it is drafted appropriately and not subject to challenge for lack of disclosure or required waivers, you really need to hire an attorney to prepare the Prenup.

Furthermore, the other side also needs their own attorney to review the agreement with them. If they had the time to consult with, and did review the proposed agreement with, their own independent attorney, it is almost impossible for a party to later claim that the agreement was unfair or unconscionable, that they didn’t understand or have adequate knowledge of what the agreement or terms were or meant,  or otherwise to try to “blow up” or invalidate the Prenup.

Basically, by taking these two simple steps (having your fiancé review the Prenup with their own attorney, and discussing, drafting and presenting the agreement well before any wedding date) you are creating an ounce of prevention that saves a pound of misery later.

Yes, executing a Prenup may lead to some additional disagreements, tough conversations, and unplanned expense before your big day. However, it will literally save you thousands, if not tens of thousands, of dollars in attorneys’ fees and costs, as well as significant time, stress and heartache, during a hotly contested divorce if you have a valid Prenup and are not litigating these issues.

If you would like to learn more about how a Prenuptial Agreement can protect you, contact the attorneys at OWENS & PERKINS by calling our office at 480.994.8824 or click here to schedule your FREE 30-minute legal consultation.