Prenuptial vs. Post-nuptial agreements: what is the difference?
Arizona law recognizes the applicability of both prenuptial agreements done prior to and in contemplation of marriage, as well as post-nuptial agreements between spouses that are entered during the marriage.
Under the lessened standard for prenuptial agreements, no consideration beyond the marriage itself is necessary. In a divorce, the burden of proof is on the party seeking to challenge the enforceability of the prenuptial agreement.
Post-nuptial agreements, on the other hand, are subject to a higher standard of scrutiny than prenuptial agreements or ordinary contracts. Such agreements must be free of any taint of fraud, coercion or undue influence, meet all the requirements of a normal contract (i.e., adequate consideration meaning something of value is exchanged beyond just the marriage itself) and must be fair and equitable. Additionally, with a post-nuptial agreement, the party seeking to enforce the Agreement and its terms has the burden of proof, by clear and convincing evidence, that the Agreement was entered voluntarily without fraud, coercion or undue influence. This is a high standard and difficult burden to meet, especially since the other spouse could simply state that they were coerced or forced into signing the agreement and they will not be required to do anything more than that. Finally, with post-nuptial agreements, the Court can independently decide whether it thinks the agreement is fair and equitable - whether or not the party seeking to enforce shows adequate consideration was given and proves it free from fraud, coercion and undue influence. Relying upon the discretion of a random judge to decide whether something was “fair and equitable” can be a significant gamble.If you would like to discuss a prenuptial or post-nuptial agreement with one of our experienced attorneys, contact Owens & Perkins at 480.994.8824 for a complimentary ½ hour consultation.