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Premarital agreements, part 2: what is needed to make them valid?

Let's pick up the thread we began developing last week about premarital agreements.

These agreements - often referred to as "prenups" - are well established in Arizona law. As we noted in our May 13 post, they can be very effective tools for protecting an individual's separate property from various scenarios for dividing community property that can arise in a divorce proceeding.

In this part of the post, let's look in more detail at what is needed to make premarital agreements effective in our state.

A good place to start this discussion is with the definition of premarital agreement under Arizona Law. The statute (25-201) defines such an agreement as "an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage."

In other words, the first part of the process of making a premarital agreement is that the parties plan to - and do - marry.

The definitional statute (25-201) also contains an expansive definition of the types of property that can be included. The property can be real property or personal property. If it is personal property, it can include both income and earnings.

This is obviously a broadly inclusive definition. There are some things that premarital agreements cannot specify, however, such as child support arrangements.

In order to create an enforceable premarital agreement in Arizona, the agreement must be in writing. That of course is a pretty basic requirement.

But there are other elements that must be met as well. The agreement must be voluntary. There must also be fair disclosure of the other party's property holdings and obligations.

The relevant statute (25-202) does allow for the possibility that a party might waive the right to disclosure. But the statute makes clear that the courts will not enforce a premarital agreement if it is "unconscionable" - in the sense that it is fundamentally unfair.

Source: Arizona State Legislature, Arizona Revised Statutes, 25-201 and 25-202

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