By: Michelle J. Perkins, Esq.
In the last three blogs we covered different types of assets and things
that you can do to keep your sole and separate property yours in the event
of a divorce.
The cleanest and most effective way of identifying what is yours is to
enter into a Prenuptial Agreement with your spouse,
prior to getting married.
A Prenuptial Agreement is a contract between you and your fiancé
that can spell out in great detail what you own, what your fiancé
owns and what will be community property.
Because Arizona is a community property state, anything earned or acquired
during the marriage is presumed to be a community asset, with very limited
exceptions. With a Prenuptial Agreement you very clearly spell out what
you own and what your spouse owns at the time you got married, making
it much easier for the Court to identify each parties assets in a divorce
A Prenuptial Agreement allows you to not only memorialize the assets each
of you have coming into the marriage, but you can also choose to opt out
of community property law by agreeing that each spouse’s respective
income will be the sole and separate property of the spouse earning it,
any property each of you acquire remains that spouse’s, and you
can agree on the amount and duration of spousal maintenance or agree that
neither party would be entitled to an award of spousal maintenance.
Unfortunately the divorce rate in this country is very high. As a result,
prior to getting married, people are looking at ways to protect themselves
in the event the marriage does not work out as planned. If the marriage
lasts, the only thing lost is you’ve paid money for a contract that
you will never use. That is a very small price to pay when you look at
the cost of a divorce proceeding.
Keep in mind, even if you enter into a Prenuptial Agreement with your fiancé’
prior to getting married, you still need to be mindful of how you treat
your assets during the marriage, as laid out in the prior 3 blogs. What
I mean by that is even if you sign a Prenuptial Agreement that says you
own two houses and have 3 financial accounts and those are yours, if during
the marriage you decide to put your spouse’s name on it, it will
no longer be your sole and separate property, the law will presume you
made a gift to your spouse.
A couple of other things to keep in mind when contemplating a Prenuptial
First, do it early. You do not want to be discussing a Prenuptial Agreement
a week before your wedding and the closer it is to the wedding, the stronger
the argument for duress or undue influence. It would be ideal to have
the Prenuptial Agreement drafted and signed before you even send out “save
the date” cards or wedding invitations (but that
never happens). When contesting the validity of a Prenuptial Agreement, legal
arguments have been made that one spouse felt pressured to sign because
everyone knew about the wedding or they had already spent so much money
on the wedding, etc. So, the earlier the better.
Second, each person should have their own lawyer. Each spouse is entitled to
get legal advice specific to their situation. As a result, each person
needs to have their own lawyer. This is not something you want to save a few
dollars on. I can promise you that the DIY (do it yourself) Prenup typically
does not turn out well and if you go through the trouble of signing one,
you want it to be upheld.
If you would like more information about creating a Prenuptial Agreement,
OWENS & PERKINS at
schedule your free 30 minute consultation with one of our experienced attorneys.