The attorneys at GillespieShields practice family, employment, civil, criminal, probate, appellate, and immigration law.
We sat down with knowledgeable Arizona attorneys Robert Newell and Mark Shields to discuss prenuptial agreements.
Read on to learn five helpful prenup tips straight from the experts!
1. A PRENUP OR IT DIDN’T HAPPEN
With divorce rates so high in today’s cynical, post-modern world, getting a prenuptial agreement (or “prenup”) may mean the difference between a stable, secure future and personal catastrophe. A well-crafted prenuptial agreement should ensure that both parties are treated fairly in the event of a divorce. They are most common in second marriages, particularly where one spouse wants to maintain his or her property from before the second marriage for the sake of his or her children. No matter what kind of personal agreement you and your spouse may have made before your wedding, you should be aware that if you didn’t get a written prenuptial agreement, your arrangement is not legally binding.
2. YOUR INCOME IS COMMUNITY PROPERTY WITHOUT A PRENUP
Arizona is a “community property” state. This means that any income brought to the marriage by both you and your spouse is considered to be shared between the two of you, including houses, cars, income, savings, real estate and even furniture. If you and your spouse earn, say, a combined total of $150,000, that income is considered to be your shared “community” income. So in the event of a divorce, without a prenuptial agreement, that community income would be divided 50-50 between the two of you, even if you had earned $100,000 and your spouse $50,000. If you and your spouse want to set any kinds of boundaries between your personal incomes, then you need a prenup.
3. YOU CANNOT WAIVE CHILD SUPPORT WITH A PRENUP
Children have a legal right to receive support from both parents. Accordingly, the court will not uphold or enforce any part of a prenup that attempts to waive parental child support obligations on the part of either spouse. Remember, child support is not something you owe to your spouse, but to your child. It is part of your legal obligations as a parent and cannot simply be waived by a contract. Based on the same principle, child custody and visitation arrangements are likewise beyond the scope of a prenuptial agreement.
4. BOTH SIDES HAVE THE RIGHT TO REVIEW A PRENUP WITH COUNSEL
The hallmarks of a legally binding prenuptial agreement are fairness and disclosure. On that note, suppose that you’ve met with your attorney and have worked out what you feel would be the perfect prenup for your situation. Your spouse now needs the opportunity to review the document with his or her own attorney to ensure it’s something they can agree to as well. If they don’t receive the opportunity to review the prenup with their own counsel, it is likely to be thrown out by the court. They can always sign an official waiver for the right to counsel if they so desire.
5. ALREADY MARRIED? CONSIDER A POSTNUP
Even if you didn’t sign a prenup before getting married, it doesn’t mean that you have missed the opportunity to make a legal agreement with your spouse. You can always agree to a postnuptial agreement, or “postnup.” Studies have shown that financial issues are a leading cause of most divorces today. A postnuptial agreement can help set much-needed financial boundaries that can help to stabilize a marriage and possibly even prevent a divorce!
Remember, if your agreement doesn’t meet the right legal considerations, it might not hold up in court. Ensure your future is protected by contacting the attorneys at Gillespie, Shields, Durrant & Goldfarb, and get started on your prenuptial or postnuptial agreement today!