By Donald Loose
“The legality of love”
Wine and roses…and prenuptials. While a premarital agreement is not appropriate in every case, one may be appropriate where one spouse has children by a prior marriage or where the spouses, for whatever reason, wish to provide in advance of marriage for the disposition of their property upon separation, divorce, or death.
Premarital agreements have not always been favored in Arizona. In fact, at one time, a contract before marriage providing that the husband would be relieved from the burden of supporting his wife in the event of divorce would have been contrary to public policy and, thus, unenforceable. The law has changed, however, and premarital agreements are no longer against public policy. Arizona, with a majority of other states, has adopted the Uniform Premarital Agreement Act, which, as the name implies, governs the scope and enforceability of premarital agreements.
Prospective spouses are now free to enter into an agreement in contemplation of marriage, which will be effective on marriage. A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
The parties to a premarital agreement may contract with respect to a wide variety of issues, including:
A premarital agreement is not enforceable if the person against whom enforcement is sought proves:
The law contains an exception for modification or elimination of spousal maintenance. If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to be eligible for public assistance at the time of separation or divorce, the court, despite the terms of the agreement, may require payment of spousal support to alleviate the need for public support.
The information contained in this article should not be construed as legal advice or legal opinion on any matter discussed. The contents are intended for general information purposes only. Always consult a qualified attorney for legal advice on a specific matter.
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