Arizona Prenuptial Agreement Info

Picture this: it’s your wedding day: you are in the beautiful desert hillsides of Arizona, you are walking down the aisle. You have a perfectly executed prenup in tow. You are about to have the best day of your life without all the “what if” worries. Here’s some information you need to know about Arizona prenups, and the terminology used. 

 

Arizona Prenuptial Agreements

The Arizona courts refer to a prenuptial agreement as a “premarital agreement.” A premarital agreement is a legal contract drafted between two parties prior to getting married, and in Arizona it is effective upon marriage, like most states. Arizona’s Uniform Premarital Agreement Act (UPAA) is the law of the land in Arizona pertaining to prenups and outlines the rules and requirements for a valid agreement. The terms of an Arizona prenup agreement may outline limitations on Spousal Maintenance and the rights to property acquired prior to, during, or after marriage- including but not limited to assets, debt, inheritance, gifts, real estate, income, and earnings, as well as future interests. On the other hand, a prenup in Arizona cannot limit or contract around child support or child custody. What is the UPAA, and how does it apply to prenups? Here’s an explanation.

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 What to include in a valid Arizona Prenup 

For an Arizona prenup to be considered valid, you should consider the following under The Arizona Uniform Premarital Agreement Act (ARS § 25-201, et seq.):

  • The contract must be in writing 

  • The terms must be lawful 

  • Signatures from both parties (HelloPrenup recommends initialing each page, and having your signatures notarized!)

  • Signed voluntarily (without being under duress, intimidation, deceit, etc.)

  • Notarized signatures (no, you should not skip this step!)

  • The contract must be signed at a reasonable amount of time before the wedding (a month is a good standard window but goes case by case)

  • Full disclosure of all financial assets and income *Do not skimp on this* (Note: in AZ a party can waive the right to fair and reasonable financial disclosure)

  • It is strongly recommended that both parties list all major assets in the contract

 

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What to exclude from your Arizona prenup  

To make sure that your prenup comports with Arizona law, make sure not to include…

  • Child custody or child support

  • Modifying or eliminating spousal maintenance (a.k.a. alimony) when that would cause the State of Arizona to bear the financial burden of the financially disadvantaged person

  • Provisions that violate the law or public policy

  • Unconscionable provisions

 

Statutes & terms to understand for a Arizona Prenup

*Before diving into the deep end, let’s go through some terminology and phrases that will be used in your prenup – that way, you don’t go cross-eyed trying to decipher the legal jargon and miss something.

Arizona Premarital Agreement Statute

If you would like to get a prenuptial agreement in Arizona, you must comply with the following:


  • The contract must be in writing

  • The agreement must be entered into voluntarily and cannot be unconscionable (unconscionable means that the agreement is so unreasonable it shocks the conscience);

  • Signatures should be notarized; 

  • Signatures from both parties (HelloPrenup recommends initialing each page, and having your signatures notarized!)

  • Signed voluntarily (without being under duress, intimidation, deceit, etc.)

  • Notarized signatures (no, you should not skip this step!)

  • The contract must be signed at a reasonable amount of time before the wedding (a month is a good standard window but goes case by case)

  • Full disclosure of all financial assets and income *Do not skimp on this* (Note: in AZ a party can waive the right to fair and reasonable financial disclosure)

  • Do not include clauses penalizing adultery 

  • It is strongly recommended that both parties be represented by their own attorneys (Note: this is not absolutely required in AZ)

  • It is strongly recommended that both parties list all major assets in the contract

A Tale of Two Sides

A landmark case that still holds precedent about Arizonian premarital agreements comes from Pownall v. Pownall, 197 Ariz. 577, 5 P3d 911 (Ariz. Ct. App. 2000). The case goes as follows. Husband and wife were scheduled to be married on May 28, 1994. Four days before the wedding, the couple went to the husband’s attorney’s office to discuss the prenup agreement. The contract kept the husband’s existing pizza business and any future businesses separate from the wife. As required by law, the husband’s attorney explained to the wife that he was not representing her and only representing the husband. The husband offered to pay for an attorney for the wife, but she declined. She signed the agreement, and the couple got married four days later. Husband filed for divorce two years later. Wife claimed that the premarital agreement was not valid because it was not conscionable, and she did not enter it voluntarily. 

So, was this prenuptial agreement found to be valid? Yes! The court ultimately found this premarital agreement was valid. The court said that she did enter this voluntarily because she could have obtained independent legal advice but did not take it. Also, even though the agreement was presented four days before the wedding, it was not considered involuntary because they could have postponed the wedding. 

It was also decided that the contract was not unconscionable. The court said that the agreement was not unconscionable because the terms were simply protecting the husband’s business interest. In addition, she had plenty of financial disclosure of the husband’s assets. She even worked for one of his businesses, thus giving her enough insight into the financial successes of his companies.  

Divorce Statute

Term used for Divorce: “Dissolution of marriage” 

“Dissolution of marriage” is the term used in Arizona to refer to divorce. A dissolution of marriage occurs when two people, who have been legally married, begin the court process to end the marriage. There are two types of marriages in Arizona: a covenant marriage and a non-covenant marriage. Only three states recognize a covenant marriage, Arizona, Arkansas, and Louisiana. Entering a covenant marriage is typically done for religious reasons. There are different requirements for both types of marriage. 

Non-covenant marriage in Arizona is the more common type of marriage, and when you divorce under a non-covenant marriage, you file for no-fault divorce. What does that mean? Well, a fault divorce points the finger at one spouse, arguing that they caused the marriage to fail (due to cruelty, adultery, etc.). A no-fault divorce simply states that the parties can no longer get along.

Below we outline some more specifics about divorce in Arizona. For a divorce to be granted in Arizona, the following items must be met: 

  • One of the spouses was living in Arizona for at least 90 days before the filing (military presence is accepted); 

  • The marriage is found to be irretrievably broken (a fancy way to say you don’t get along anymore); 

  • The marriage was a non-covenant marriage

  • If applicable, child custody must be decided upon.

How to end a marriage in Arizona  

Like many states, the three ways that a couple can legally end a marriage are through divorce, legal separation, and annulment. Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make it work!) If one party wants to divorce the other party, it is within their sole right to do so, and the other non-participating party does not have to agree to begin the process. If a non-participating spouse does not partake in the proceedings, a default judgment will be entered and force the divorce to proceed.

Residency requirements

Each state has residency requirements that must be fulfilled before you can divorce in that state. In Arizona, these are the residency requirements. 

  • You or your spouse must have been a resident of Arizona for at least 90 days before filing for dissolution. A longer waiting period may be required if there is a minor children custody battle.
  • You or your spouse was stationed in Arizona while a military member for at least 90 days prior to filing for dissolution. A longer waiting period may be required if there is a minor children custody battle.
  • You must file the divorce in the county where you or your spouse resides. 

No Fault Divorce 

Arizona is a no-fault divorce state – meaning either party can file for a divorce without having to prove that the other party did something “wrong” to justify the dissolution of the marriage (these are called “fault grounds.”). Arizona has a waiting period of sixty (60) days before a divorce can be finalized. To proceed with a no-fault divorce, only one party of the marriage needs to state that the marriage is not working out and thus claim the marriage to be “irretrievably broken.”

>>For the entire fine print review Arizona Revised Statute, Chapter 3 of Title 25 – Marital and Domestic Relations  

Separate Property

Official term for property not considered part of the marital estate 

Separate property in Arizona is anything owned by the spouse before the marriage or is acquired by the spouse during the marriage as a gift or inheritance by a third party. This also includes any gains on the property (i.e., rent, interest, etc.). Otherwise, if this is not to your liking, you will need to specify it clearly in a legal document (such as a premarital or postnuptial agreement). 

>>For more fine print, review Arizona Revised Statute, Chapter 2 of Title 25 – Husband and Wife, Property and Contract Rights

Spousal Support

Term used for Spousal Support: “Spousal Maintenance” Upon Dissolution of the Marriage or Legal Separation

Arizona offers a few different types of spousal support, including temporary maintenance (a.k.a. “pendente lite”), rehabilitative maintenance (a.k.a. “temporary support”), and permanent maintenance.

Temporary maintenance (a.k.a. “pendente lite”) is support from one spouse to another only during the duration of the divorce. It allows the economically disadvantaged spouse to have support during the financially draining divorce process. 

Rehabilitative maintenance (a.k.a. “temporary support”) allows the disadvantaged spouse to get back on their feet financially after the divorce. This incentivizes the other disadvantaged spouse to become financially independent and not be forced to rely on their ex-spouse forever. 

Permanent maintenance is what you usually think of when you think of spousal support/maintenance. This is ongoing support from one spouse to the other economically disadvantaged spouse. This is typically reserved for extreme cases, and Arizona courts do not grant this easily.

What qualifies someone for Spousal Maintenance in Arizona? 

To be eligible for Spousal Maintenance in Arizona, the court must find one of the following to be true: 

  • The spouse requesting support lacks sufficient property to meet his needs;
  • The spouse requesting support is unable to support himself through appropriate employment or cannot become adequately employed;
  • The spouse requesting support contributed to the educational opportunities of the other spouse; or 
  • The couple had such a long marriage and are of such an older age that it may preclude him from becoming adequately employed.

>>For the fine print on Arizona Spousal Maintenance, review Arizona revised statute, Section 25-319. 

Real world Arizona Spousal Maintenance Case

In 2014, a wife filed for divorce against her husband of 28 years, and she also requested spousal maintenance from him. The court ultimately found that spousal maintenance was not warranted in this case. Find out why below.

The wife earned $1,500 per month working part-time and would eventually receive about $2,323 monthly from her husband’s pension. In addition, in the divorce she was given $150,000 from husband’s retirement savings plan and half of the couple’s property. The wife claimed her monthly expenses were $5,342, and the husband argued that was an exaggeration, and this number included support of adult children. The wife was not at the age of retirement and offered no proof that she was unable to become employed. With all this information considered, the judges decided no spousal maintenance was warranted. (Mead v. Mead, 2015 WL 773346 (Ariz. App. 1st Div. Feb. 24, 2015)

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