It is a well established fact that money issues are a big cause of marital discord and divorce. Sometimes, entering into an agreement after marriage defining financial rights and obligations can serve to save a marriage and end perennial fighting.
In Arizona, the Court’s recognize the right of married people to enter written agreements after marriage. This type of agreement is called a postnuptial agreement (by contrast, prenuptial agreements are entered into before a marriage). The purpose of a postnuptial agreement is to resolve monetary issues during the marriage and in case of a separation or divorce. The agreement limits uncertainty if the parties divorce and provides guidelines for managing assets and debts during the marriage. The agreement can cover everything from defining property and debt as separate or community property, defining spousal maintenance if the parties should divorce, setting forth a household budget and deciding long term care options.
Unlike prenuptial agreements, there are no statutes defining the requirements of a postnuptial agreement in Arizona. However, Arizona has recognized the validity of postnuptial agreements in a 1969 in a case called In Re Harbor’s Estate, 104 Ariz 79, 449 P.2d 7 Ariz. (1969).
Postnuptial agreements must be fair, and, if the agreement is challenged, the person asserting that the agreement is valid must prove that it is fair and equitable by clear and convincing evidence. A party can also challenge an agreement under normal contract defenses like fraud or duress.
To help ensure that an agreement is binding, the parties should disclose their full financial situation and make sure both parties review the agreement with their own attorneys before signing it.
Couples can use a mediator to help them draft the prenuptial agreement. A mediator is a neutral professional trained in conflict resolution who can help parties reach an agreement in a non-adversarial setting. While both parties should still have independent attorneys review the agreement, by crafting the agreement in mediation, the parties forgo what might otherwise be an adversarial process of lawyers sending letters and draft agreements back and forth.
CNNLiving posted an article on April 2, 2008 called Quit Fighting – Get a Postnuptial Agreement, by Robert DiGiacomo. It details one couple’s successful use of a postnuptial agreement to save their marriage. The wife was concerned about losing everything because they had taken out two mortgages and spent inheritance money to support the husband’s business. In mediation, the parties reach an agreement to transfer the house into the wife’s name to address the wife’s fear of losing the house and to protect the asset from the husband’s business debt. The parties also agreed on how to divide their household expenses. They both had the agreement reviewed by an independent attorney to ensure that they understood the agreement and that it was fair. The couple credits the postnuptial agreement as the reason they were able to celebrate their 30th wedding anniversary.
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
