Prenuptial Agreement – Needs a Careful Understanding and Expert Drafting

Prenuptial Agreements a.k.a  “prenup”, “premarital agreement” or “antenuptial agreement”, is the couple’s agreement made in contemplation of their marriage. It is a legal agreement that sets forth the spouses’ rights and responsibilities while they are married and clearly specifies the course of action if the marriage ends with a divorce or a spouse’s death.

Prenups provide a proactive plan. It helps in deciding over the matters that are contested in the event of divorce, like who gets to keep the pets or how the property is divided or how the money won in the lottery be used.

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The importance of the prenup agreement increases manifold if the couples have:

  • Significant number and amount of assets;
  • children from previous marriages;
  • More wealth than the other;
  • One party is much older than the other;
  • Full or partial ownership of a business by one party;
  • Bringing substantial debt into the marriage;
  • One party is already retired;
  • An obligation to support the other, financially with a degree program; or
  • Either party anticipates a significant inheritance.

Since signing a prenup before marriage can be a sensitive issue, legal guidance is important to make the couple understand the value of having such an agreement. The agreement must be drafted by hiring a Scottsdale family law attorney in order to have a valid prenuptial agreement, as per the Arizona Uniform Premarital Agreement Act.

 

Basic Requirements for a valid Arizona Premarital Agreement.

At the time of entering into the prenup, ensure that the following requirements are met, for a premarital agreement to be valid and enforceable in Arizona

  • Make all the points of agreement in writing;
  • It must be voluntarily signed by both the parties;
  • It must have a fair and reasonable disclosure of property and all financial obligations, duly signed by both the parties.

The agreement comes into immediate effect after the marriage of the couple, but not before the marriage.

Check your prenup for these mistakes

 

The prenuptial agreement helps in lessening the financial complications of the divorce, but only if it is enforceable at the time of the need. Certain mistakes made by both or either party can challenge its validity and lead to partial or complete refusal of the agreement.

●      The premarital agreement was signed under compulsion.

A premarital agreement seems to be a solution to the unpleasant actions that may occur in case of a divorce. But it may not be the case if one of the partners claims that he/she was under duress while signing the agreement. This claim may make prenuptial agreement unconscionable and it is on the judge to decide.

●      Only one spouse had a lawyer

While the agreement was being drawn, each party must be represented by the attorneys of their own who can present the interests of their respective party. This is necessary to assure fairness and full disclosure in the negotiating process.

●      Misinterpretation of Assets and liabilities

It unfair to conceal property or liabilities from the other while drafting the prenup. This may lead to complete rejection towards considering prenup agreement for the purpose of divorce or death settlement.

●      Agreement signed in the state of mental instability

The validity of prenup agreement can be challenged if one of the party was under the influence of drugs or alcohol, or was mentally incompetent at the time of signing the agreement.

●      Interference with child custody

Any clause of a premarital agreement that attempts to limit child custody rights, are looked down by the court. Any terms of the agreement that goes against the Arizona Child Support Guidelines are not entertained while making child support decisions.

The idea of signing a prenup may seem pessimistic, especially for those who are marrying for the first time. But one must get ready for unexpected. In case of any disagreement over the continuation of marriage, the prenup will certainly help in ending the relation on better and pleasant terms.

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