Postnuptial Agreements in Arizona

A postnuptial agreement is an agreement that is entered into by two married people that determines rights between the parties regarding marital property. A postnuptial agreement is used to resolve monetary issues both during the marriage and in case of a separation or divorce. However, it should not be confused with a separation agreement, which is generally entered into in contemplation of legal separation or divorce; nor should it be confused with a prenuptial agreement, which is entered into before marriage.

Arizona courts recognize the right of married people to enter into written agreements together at any time to determine what the status of their property is to be. Though there is no specific statute that authorizes or creates the rights of married couples to alter their property rights by postnuptial agreement, this right is supported by case law.

Often, pre and postnuptial agreements have negative connotations. They are often wrongly associated with marriages that are likely to end, or couples who are mistrustful of one another. In actuality, a post nuptial agreement can help to strengthen a relationship in the midst of financial stress. It is widely known that monetary stresses can be the biggest cause of marital stress and conflict, and a post nuptial agreement can address and resolve these stressors. There are many reasons why a married couple may decide to enter into a postnuptial agreement. Most commonly, postnuptial agreements are used to help resolve financial disputes during a marriage. Creating a postnuptial agreement can actually prevent divorce or separation by creating guidelines for the financial dispute, and thus putting a focus on cooperation and agreement, rather than turmoil. Postnuptial agreements can define how assets and debts would be allocated in the case of a legal separation or divorce, as well as defining spousal maintenance. It can help to establish a household budget and create clear financial boundaries in the marriage.

In order for a postnuptial agreement to be upheld by a Court it must be fair and equitable, free from any fraud, coercion or undue influence, and parties must make fully informed decisions; i.e. they must be aware of all assets involved and all legal rights.
A mediator can help a couple to draft the prenuptial agreement. An experienced mediator, who is both knowledgeable about Arizona family law and an experienced professional trained in conflict resolution, can help parties to make informed decisions in an amiable, non-adversarial environment. Ultimately, it is important for both parties to have independent attorneys review the agreement to ensure it is enforceable; however, through creating the agreement in mediation, parties avoid an adversarial and expensive process involving attorneys communicating back and forth.

Tamara Hirsch, JD, LCSW