Most people have heard of prenuptial agreements, but may have never considered a postnuptial agreement. A prenuptial agreement deals with how the soon-to-be spouses will treat certain property, finances, and investments. On the other hand, a postnuptial agreement may deal with terms and property division after the marriage has taken place.
Postnuptial agreements are a relatively recent development in comparison to prenuptial agreements. A husband and wife were historically considered to be a singular unit as a married couple, and unable to contract with each other. However, in recent decades, as divorce becomes more common, postnuptial agreements are becoming more widely accepted.
Postnuptial agreements are valid under Arizona state law, although there are no statutes that specifically regulate postnuptial agreements, as there are with prenuptial agreements.
A postnuptial agreement can have certain benefits for couples that they may not have considered prior to getting married. Most engaged couples are not considering the likelihood that they will be divorcing or separating from the person they are about to marry. However, once they enter into marriage and have been together for some period of time, they may realize that the possibility of a separation may be in their future. Rather than wait until an actual divorce, a married couple may decide on some common ground that they can agree to in the case of an eventual separation.
One of the more common uses for such an agreement involves consideration of a future separation or divorce. A husband and wife can make an agreement relating to spousal support, the division of community property under the marriage, and the division of property each party had before entering into the marriage, and the division of debt incurred during the marriage.
Another reason for entering into a postnuptial agreement is to settle an issue that only came up during the marriage, in order to avoid a later dispute over the issue or property. This can include separating the individual property of each spouse, including income, real estate, and debt. It can also regulate actions between the spouses, such as vacations, time with family, or even household chores.
The courts generally give broad deference to what private parties are able to do in contracts. However, there are limitations, especially when a contract or agreement overlaps with family law. A court may not enforce terms of a postnuptial agreement that would be illegal, even if both parties agree at the time of contracting. This is why it may be important to speak with your family lawyer and Arizona estate planning attorneys to ensure that the agreement you seek will be enforceable under the law.
Your lawyers will be able to advise you as to what limits there may be to a postnuptial agreement, including terms of spousal support, asset protection, and division of property. In some cases, a couple may want a postnuptial agreement to help them avoid divorce through settling disputes and avoid long-term stresses in their marriage.
At West, Longenbaugh and Zickerman, our experienced divorce attorneys provide our clients with an evaluation and advice on whether a postnuptial agreement is right for them. We will keep you informed of all your options, and draft and file the necessary legal documents. Our team of lawyers are committed to addressing the individual needs of each of our clients and can assist you with all aspects of marriage agreements and planning.