Recently, postnuptial agreements have become more popular as couples look to protect their individual interests and outline the expectations of a marriage. Can a solid postnuptial agreement actually prevent a couple from getting a divorce, though? Let’s take a look at the role postnuptial agreements play within a possible divorce process.
What Is A Postnuptial Agreement?
This agreement typically covers financial matters, such as setting the ground rules for how finances are to be handled during the union or the anticipation of real estate property division. Another reason why a couple could seek this agreement is if one spouse potentially inherits a considerable amount of assets or property and hopes to protect this in the event of a divorce.
Whatever the specific terms, these agreements are in place for pragmatic reasons. Couples often utilize these agreements to avoid miscommunication and extended litigation in case there are marital problems in the future. Postnups are important because if a separation or divorce happens, the court will be responsible for dividing all the assets and property belonging to the couple. These agreements are intended to give the spouses control over how property and assets are divided.
WHAT IS THE LEGAL BASIS FOR POSTNUPTIAL AGREEMENTS IN ARIZONA?
Under Arizona law, prenuptial agreements are valid and enforceable. Prenups are legal under state law, according to the Uniform Premarital Agreement Act in Arizona Revised Statute Section 25-202. However, unlike prenuptial agreements, the state does not have a specific statute regarding postnuptial agreements.
Family courts will recognize these legally binding agreements, though, because they are valid by virtue of precedent cases. Since Arizona courts have a history of enforcing these agreements, they continue to do so to this day.
WHAT IS COVERED IN A POSTNUPTIAL AGREEMENT?
A postnuptial agreement is put in place to outline the different assets spouses own and can dictate what happens to said assets in the event of a divorce. Let’s take a look at the most common and important areas covered in a postnup.
Financial Assets
This agreement can cover the various financial assets of each spouse, including their income and/or retirement fund. In divorces with a prenup or postnup, a spouse who earns more money can be subject to an unfair division of assets. This can happen when the other spouse actively pursues these assets. The prenup can also examine how debt is to be divided in the event of a separation or divorce.
Property And Asset Division
Following the end of a marriage, many people feel more comfortable creating legal documents to identify their valued assets and property. This way, if a separation or divorce occurs, they can ensure they’ll be able to keep what they had prior to their marriage. Not only can a postnuptial agreement identify ownership of assets, but it can also dictate how they will be divided after a marriage.
Alimony
Commonly known as spousal support, alimony is a payment made from one spouse to another following a divorce to ensure they can keep the same lifestyle they’ve been accustomed to. Many people will create parameters around alimony in their postnuptial agreement in order to prevent any unfair legal action from the other spouse after the divorce.
Divorce Laws
Typically, there are two kinds of divorce: uncontested and contested. In some cases, the married couple agrees on the divorce, which makes it uncontested. This type of divorce occurs when both parties agree to terms on the division of possessions and fill out all the required paperwork to complete the process peacefully.
It is possible to complete the uncontested divorce process with DIY paperwork and necessary filing fees. Either an attorney or legal document preparer can also ensure your paperwork is filled out properly. A contested divorce occurs when the parties ultimately disagree on the proposed terms of said divorce. Oftentimes, couples may disagree on child support, the division of assets, and spousal maintenance, among other issues.
The typical Arizona divorce process will involve the following steps:
- Couples gather all necessary information and documentation.
- Fill out appropriate divorce forms.
- File and serve the forms.
- Pay filing fees.
- Wait for a response.
- Attend the hearing.
In addition, Arizona is a covenant marriage state. This is a specific type of marriage where the married couple only agrees to divorce under specific conditions. Spouses in a covenant marriage must meet specific criteria to dissolve their marriage (A.R.S. §25-903 and A.R.S. §25-904). Covenant marriages are quite rare even in the state of Arizona.
Uncontested Divorce
If the terms of your divorce have been agreed upon from the start, your divorce may be considered “uncontested.” The paperwork establishing your agreements can be filed, and the case can be concluded without the involvement of a judge.
CONTESTED DIVORCE
A contested divorce occurs when both spouses cannot agree on one or more key issues necessary to finalize their separation. These issues can involve various aspects of the marriage, such as:
- Division of assets and debts: This includes property, bank accounts, retirement funds, and even household items. Disagreements about the value or ownership of these assets can significantly complicate the process.
- Child custody and support: If minor children are involved, reaching an agreement on their living arrangements, visitation schedules, and financial support becomes crucial. Disagreements on these matters can be highly emotional and require additional legal expertise.
- Spousal support: Depending on the financial circumstances of both spouses, alimony or spousal support might be a point of contention. Reaching an agreement on the amount and duration of support can be challenging.
- Negotiations are unsuccessful: Efforts to reach a mutual agreement through mediation or other alternative methods fail.
- Court involvement: The case goes to trial, where a judge will decide the disputed issues based on evidence presented by both sides.
- Longer and more expensive: Compared to an uncontested divorce, contested divorces take longer to finalize and incur significantly higher legal fees due to litigation costs and additional time spent preparing for trial.
Preventing Divorce Through Postnups
An ironclad postnuptial agreement has the ability to potentially prevent a divorce by addressing key topics before they truly become a source of conflict and dispute. Couples typically feel more secure regarding their financial future together when the division of assets and debts has been clearly defined.
Additionally, postnuptial agreements can encourage open and honest communication between spouses regarding topics that could potentially mark an end to the marriage. By putting this agreement in place, the couple will understand how a divorce will ultimately impact them.
Source: “How To Write A Postnuptial Agreement With Or Without A Lawyer” Hello Divorce https://hellodivorce.com/divorce-planning/how-to-write-a-postnuptial-agreement-with-or-without-a-lawyer
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