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Premarital agreements, part 1: when is a prenup in order?

The brevity of the shorthand term "prenup" belies the fact that there is no standard type of prenuptial agreement.

To be sure, there are certain standards that all premarital agreements (the operative term in Arizona) must meet. For starters, the parties must make proper disclosure of their individual finances.

There are also certain things that premarital agreements cannot do, such as specify child custody and support arrangements for the future.

For the most part, however, parties to an impending marriage are free to enter into agreements to govern their property arrangements. Sections 25-201 through 25-205 of the Arizona Statutes allow for this. In this post, we will discuss some of the ways these agreements can be used.

One common scenario for a premarital agreement is when someone who is about to be married has substantial individual property - perhaps from an inheritance - that he or she wants to protect in the event of divorce. A premarital agreement can enable that party to specify that this property will be considered separate property, not community property.

Such an arrangement can certainly happen when neither party has been married before. But there is also a variation on the theme when someone with children from a previous marriage is getting remarried. When that is the case, a prenup is sometimes in order to address what property the second spouse would get if the second marriage ends in divorce.

Another possible scenario for premarital agreements occurs when both parties wish to specify that incomes that they earn after marriage will remain individual and not be considered community property. If both couples are high earners, this may be an entirely sensible scenario.

No matter what the precise terms of your proposed prenup, however, it makes sense to involve legal counsel in working it out. As we will discuss in part two of this post, there are legal formalities involved that a lawyer can help you navigate.

To learn more about our practice, please visit our page on premarital agreements.

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