article by: Natalie Evans Parkman
With a background in cases involving trauma, inter-family conflict, and disruption of the parent-child relationship, Natalie has cultivated a practice that balances creative problem solving with compassion and diligence. She believes in the mediation and settlement process to resolve matters if at all possible, but her trial background makes her an excellent advocate in the courtroom as well
Marriage is one of the biggest commitments you will make in your life, both emotionally and contractually. The goal is to make it last, especially if you have experienced a painful end to a relationship in the past. But pitfalls abound usually arising out of unsaid and unmet expectations, and finances. These seem to be the top of the list trigger points that cause friction between couples.
With a prenuptial agreement, you can define your financial relationship from the start. This can eliminate some of the collateral damage that unfortunately results when financial strain or conflict rears its ugly head. Even if the marriage does not survive, you and your partner will know what to expect, saving a lot heartache, time, and money when going through the dissolution process.
Prenuptial agreements are not just for millionaire moguls, heiresses, or movie stars. They are common where there is a big disparity in assets, earning capacity, or one party expects an inheritance. But even absent these considerations, a prenuptial is an excellent planning tool for any engaged couple who is seeking certainty not only during the marriage, but also upon death or divorce. This is especially true given the unprecedented aftershocks of COVID-19 on public health, the economy, and relationships in general. Prenuptial agreements are more relevant now than ever before across the board.
Depending on your individual circumstances and communication style with your partner, you may choose to break the “prenup” ice in any number of ways. This website lists a multitude of scenarios and suggestions on how to discuss prenuptial agreements that can be tailored to your specific situation.
When talking to your partner, keep in mind that prenuptial agreements benefit both of you including:
- Protection from creditors;
- A fair division of joint living expenses;
- If one spouse dies, it provides protection from painful litigation with squabbling heirs;
- If you divorce, it can eliminate costly and emotionally draining litigation.
The prenuptial agreement must be in writing and signed by both parties in plenty of time prior to the wedding. Each party must provide a fair and reasonable disclosure of the property or financial obligations they have. Although you can waive the disclosure requirement, the waiver needs to be voluntarily made. Although not absolutely required, it certainly bolsters the enforceability of an agreement if both parties have counsel of their own choice.
Many practitioners offer flat fee rates to help you through the prenuptial agreement process from start to finish, so make sure to ask about your options. Although it is a financial investment up front, it is a small price to pay to give you peace of mind going into the marriage and sure to save you a pretty penny in the long run on contested litigation.
You can. However, we strongly encourage you at least have an experienced family law attorney review your draft prenuptial agreement before signing to avoid long-term enforceability complications, which can be financially devastating.
A prenuptial agreement must be signed by both parties and notarized prior to the wedding ceremony, but the terms of a validly executed agreement are not effective until the actual date of marriage.
You can sign a prenuptial agreement at any time prior to the marriage, but the more time the better. A full disclosure of property and obligations must be exchanged before signing, so create some wiggle room for yourself.
As long as your prenuptial agreement was valid when signed, it will not lose its validity just because you postponed your wedding. It doesn’t become effective until you marry, so it will still be ready and waiting for you when the big day finally arrives. However, you will want to make sure that the terms of your prenuptial agreement are still appropriate to your circumstances closer to the actual wedding date. If there has been a big change, you should revisit the Agreement a reasonable amount of time before you get married and sign a new one, if necessary.
The pandemic has created a lot of turmoil. But signing a prenuptial agreement is not a casualty. What you need to know is that under Arizona law, a prenuptial agreement is not enforceable if:
(1) A challenging party proves either that the Agreement was not signed voluntarily; or (2) The Agreement was “unconscionable” when it was signed and the challenging party was not provided full disclosure of the assets and obligations of the other party and did not waive such disclosure and could not have had adequate knowledge of such assets and obligations.
Also if the Agreement eliminates spousal support and that would cause one party to have to seek public assistance, a court may override that particular provision of the prenuptial agreement.
One of you may be unemployed or your business temporarily shut down due to COVID-19 restrictions. We all hope that things will take a turn for the better. With this in mind, you may want to implement a “sunset clause” into your prenuptial agreement. A sunset clause provides for an expiration date for some or all of the terms of your agreement. The idea is that the longer you’re married or the further out you are from something like the COVID-19 pandemic, the more likely you’ll continue to stay married and your financial circumstances will have righted themselves.