Thinking about signing a prenup in Arizona? Congratulations! A prenuptial agreement is an excellent way to protect your financial future while also getting on the same page as your future spouse. Talking about hard topics like money management, debt, bank accounts, death, and more can facilitate important conversations before walking down the aisle. But—do you need a lawyer in Arizona to create a prenup? What if only one person hires a lawyer? Can you share one? We address these questions and much more. Let’s dive in!
Are lawyers necessary for a prenup in Arizona?
No, hiring a lawyer is not a prerequisite to a valid and enforceable prenup. However, if the prenup is ever challenged in the divorce, the presence or absence of a lawyer may be considered as one factor the court considers in determining its enforceability. For example, an Arizona court in In re Marriage of Pownall (2000) mentions that the UPAA comment says that “lack of independent legal counsel may be a factor in determining whether an agreement is unconscionable.”
In the Pownall case, Husband’s attorney also made it clear to Wife that he represented Husband only and suggested that she have another attorney review the agreement. Wife stated that she did not need an attorney and refused Husband’s offer to hire one for her. She should not then be able to later claim she was not on equal bargaining terms when she declined the opportunity to protect herself. Nor was it Husband’s attorney’s duty to explain the nature or value of the rights Wife was relinquishing. The Husband’s attorney sufficiently explained that he was not her attorney and that he represented only Husband’s interest.
Can only one party hire a lawyer in Arizona for a prenup?
Yes, it is possible for one partner to hire a lawyer for a prenup (and the other not to) and have the agreement hold up in an Arizona court. However, the presence or absence of an attorney for either party may be considered by a court when determining the enforceability of the agreement.
A great example of this is in the In re Marriage of Pownall (2000) case, where the court upheld the prenup despite only one party having a lawyer. In that situation, the husband offered to pay for the wife’s attorney, and she refused and signed the prenup without legal advice or representation.
Can we share a lawyer?
No! One lawyer cannot represent and advise the same two parties to a prenuptial agreement, as this can cause a conflict of interest and prevent the attorney from zealously advocating for both clients. For example, if two parties to a prenup have opposing interests regarding alimony (one party wants to waive alimony, the other party wants to keep it), then it would be difficult for one attorney to advocate for both parties’ interests at the same time. The bottom line? You cannot share a lawyer for your prenuptial agreement. A lawyer can only advocate for one person.
Can one partner pay for the other partner’s prenup lawyer fees?
Yes, it is generally considered acceptable for one partner to pay for their fiancé’s prenup lawyer fees, as long as they aren’t coerced into the prenup or forced to choose a certain lawyer. Again, in the In re Marriage of Pownall case, the court pointed out that the husband tried to pay for his wife’s prenup attorney, but she refused. The court later used this as an example of how the wife had the opportunity to hire a lawyer but declined, so she cannot later claim that she didn’t have the advantage of a lawyer to get her prenup thrown out. This underscores the point that you may be able to pay for your partner’s attorney fees, as long as you don’t coerce them into signing or choosing a particular attorney.
Can I write my own prenup?
Yes, it is possible to write your own prenuptial agreement in Arizona and have it held up in court. However, a self-written prenup must still comply with Arizona’s state laws regarding prenuptial agreements.
This means you’ll still need to comply with the following:
- Putting the agreement in writing and both parties signing it
- Full financial disclosure of all income, assets, and debts
- Voluntariness (the agreement must not be entered into under fraud, duress, coercion, etc.)
- The agreement must not be unconscionable (i.e., grossly unfair)
In addition to ensuring your self-written prenup is compliant with state law, drafting your own prenuptial agreement may be difficult because you may not understand best practices or common pitfalls that could make the agreement unenforceable later on.
What are the benefits of hiring a prenup lawyer in AZ?
Even though it is possible to draft a prenup yourself and have it hold up in court, hiring an Arizona attorney to assist with your prenup gives you the best chances of enforceability if either party challenges the agreement. Hiring a lawyer shows the court that each party understood their rights, had an advocate pushing for their best interests, and voluntarily agreed to the terms within the agreement. In addition, hiring a lawyer can also give you peace of mind by answering all of your questions, giving you advice, and ensuring your agreement is state-compliant.
The bottom line on the lawyer requirement for a prenup in AZ
The big takeaway here is that a lawyer is not a prerequisite for a valid prenup in Arizona. However, if the prenup is ever challenged one day, the presence (or absence) of a lawyer can play into whether or not the court sets aside the agreement. So, hiring a lawyer can ultimately help with the enforceability of the agreement, though not required. And if one of you hires an attorney but not the other, it might be okay, but it’s always best practice for both parties to hire lawyers. And definitely do not share a lawyer. Happy prenup planning!
Mitchell E. Cohen, a graduate of New York Law School has been practicing law in Arizona since October 1982. Limiting his practice to all aspects of Family Law, Mr. Cohen is licensed to practice in all Arizona Courts as well as the U.S. Court of Appeals and the Supreme Court of the United States.
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