Do I Need A Prenup In Arizona, and Can I Get One Through Mediation?

Prenuptial agreements are contracts entered prior to marriage to address issues during the marriage and in the case of divorce.  Prenuptial agreements are not required.  However, some people feel more comfortable launching into marriage with some financial protections in place.

A common use for prenuptial agreements is to ensure someone’s sole property (property obtained prior to the marriage or by gift or inheritance during the marriage) remains his or her sole property in the case of a divorce.  One can protect separate property without a prenuptial agreement by keeping it separate from community assets during the marriage.  For example, if a person has a separate bank account, he/she could keep it in his/her name alone and not deposit community funds into it.   However, without a prenuptial agreement, a separate asset would be more susceptible to attack.  Upon divorce, the other party could claim that there is a community lien on an asset.  This means that the community (the husband and wife together) helped to contribute to the value of the asset.  For example, if one party owns a house prior to marriage, but income earned during the marriage went to improve the house or pay the mortgage, the other party could demand some payment.  A prenuptial agreement could prevent such claims.  Such agreements could apply to separate businesses as well.

A prenuptial agreement can be used to secure other agreements too, as long as the terms are not unconscionable and do not violate public policy or criminal law.  An agreement can also limit future spousal maintenance – however, the Court can override that provision if the party who would otherwise be entitled to spousal maintenance now qualifies for public assistance.

To help ensure that a prenuptial agreement withstands a challenge in court, it is important that it is drafted appropriately after full disclosure of all assets and obligations.  It is also important to ensure both parties had the right to obtain legal advice.  However, there is no reason for both parties to “lawyer up” for an adversarial process in creating a prenuptial agreement.  Both parties can jointly retain a mediator, who will help the parties reach agreements and draft the prenuptial agreement.  Before signing the agreement, both parties will consult with their own legal counsel to ensure they understand and agree with the contract.  By using a mediator, the process is generally less expensive and non-adversarial.

Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Comments

  1. Hi Alona

    I was just reading through you website and have a question for you. I am 62 and marrying a man here in WA. We went to a lawyer here yesterday, and she said that there really is no need for a prenup in WA. or AZ. (we are hoping to retire there shortly) due to the fact that it is a community property state. This is provideing we don’t comingle assets. Do you agree with this? Connie

  2. Hi Connie,

    In Arizona, a prenuptial agreement can accomplish more than just ensuring that separate assets remain separate. Therefore, the answer to your question depends on what you want to accomplish. If you would like to talk to me about mediation, please call me at 480-998-1500.

    Sincerely,

    Alona M. Gottfried
    Mediator

    Disclaimer: As with the article, this is not intended to be legal advice. See a legal professional before making legal decisions.

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Alona M. Gottfried, Esq.
8160 E Butherus Dr, Suite #7 Scottsdale, AZ 85260
Phone: (480) 776-8271