Mention a prenuptial agreement and some people immediately think about divorce because they are not activated until divorce. However, that misses an important part of what a prenuptial agreement can accomplish in the terms of your operating marriage.
So, do prenuptial agreements help marriage? They absolutely can help your marriage. Of course, no legal document can guarantee a successful relationship or marriage because so many intrinsic things go into a successful marriage. However, creating a thoughtful prenuptial agreement can encourage couples to have important conversations about money, property, careers and expectations before they say “I do” that addresses touchy subjects before they enlarge and fester into misunderstandings and conflict.
At McMurdie Law & Mediation, we view a prenuptial agreement as a marriage-planning tool. With more than 30 years of Arizona family law experience, Cristi McMurdie helps clients understand not only what their agreement means if a marriage ends, but how it can provide clarity while your marriage is thriving with practices in how to pay monthly bills and how to handle proceeds from joint or sole and separate property already contemplated and expressed in terms of agreement.
What Does a Prenuptial Agreement Actually Do?
A prenuptial agreement is a written agreement made by prospective spouses in contemplation of marriage. Under Arizona law, the agreement becomes effective when the couple marries.
A prenup can address issues including rights and obligations concerning property, how property will be managed, what happens to property upon divorce or death, spousal support, life insurance benefits and certain estate-planning arrangements. Arizona’s definition of property for these purposes includes your income and earnings.
Importantly, a prenup cannot adversely affect a child’s right to support.
How Can a Prenup Help During Marriage?
One of the greatest benefits may happen before the prenuptial agreement is ever signed.
Creating a prenuptial agreement requires couples to talk about subjects that can otherwise be surprisingly easy to avoid. How will you handle separate and joint accounts? What debts does each person bring into the marriage? What happens if one spouse leaves the workforce to raise children? Would that person justifiably claim spousal maintenance? How should a business, inheritance, investment account or future earnings be treated? What if you buy things together after marriage, is it joint or sole and separate? What do you anticipate doing during marriage? What are you joint goals and your separate goals? We customize your prenuptial agreement terms to your lives, your goals, your interests.
These discussions can uncover different expectations before they become marital disagreements.
A couple might decide, for example, to maintain certain separate accounts while creating a joint account for household expenses. Another couple may want clarity about how business income or employment benefits will be treated. Another couple may have a set schedule regarding the waiver or the claim of spousal maintenance.
The prenuptial agreement itself does not necessarily create a healthy marriage. Yet, what is required in creating a prenuptial agreement requires transparency and intentional conversations and therefore support to establish clearer expectations.
A Prenuptial Agreement Provides Peace of Mind
Uncertainty almost always leads to tension, particularly when one or both people enter a marriage with significant financial responsibilities, assets, and goals and aspirations.
Someone who owns a business may worry about its future. A person entering a second marriage may want to protect assets intended for children from a previous relationship. Another person may have substantial student loans or other debt. Another person may be looking at a large inheritance to protect.
A prenuptial agreement allows those concerns to be discussed directly and then addressed expressly in your prenuptial agreement.
Instead of leaving important financial questions hovering quietly in the background, both people can understand and discuss where they stand and what they want.
What Happens If the Marriage Ends?
A prenuptial agreement also serves its more familiar purpose if the couple later divorces.
Arizona is a community property state, and in a valid premarital agreement you can choose to step outside the protections of community property statutes for the good reasons that you agree to. You can jointly establish your rights and obligations concerning property and address how property will be handled upon separation or dissolution. It may also modify or eliminate spousal support, subject to limitations under Arizona law.
Having those decisions expressly stated in your prenuptial agreement can and often reduces some of the uncertainty and conflict surrounding divorce.
However good your prenuptial agreement seems, however, not every agreement can withstand an attack of validity. It is extremely important to ensure that all of the requirements of Arizona statutes and case law are met so that your agreement can withstand an attack on its validity.
Why Each Person Should Have Their Own Attorney
McMurdie Law & Mediation requires each person involved in the prenuptial agreement process to have their own independent legal counsel who has a background in family law. Having separate attorneys gives both people the opportunity to receive advice about what the proposed agreement means specifically for them. It tells the court later, that each party had the opportunity to understand every term in the prenuptial agreement and was advised on each of them. It tells the court, that the parties each were of sound mind when they signed and they knew and understand any right they were waiving and any additional obligation they may be taking on.
The process should not be rushed. Complete financial disclosure, careful drafting, attorney review and negotiation can take several weeks and should be done a few months before the wedding.
Wedding planning already comes with enough deadlines. Starting your prenuptial agreement early allows these important conversations to happen thoughtfully rather than under the pressure of an approaching wedding date
Marriage Planning With Intention
So, do prenuptial agreements help marriage? Though we said above that it cannot make a marriage successful, it certainly support transparency, and establishes financial expectations and gives each person greater certainty about their rights.
At McMurdie Law & Mediation we believe that knowing where you stand makes it easier to concentrate on where you are going together.
If you are planning a marriage in Arizona, McMurdie Law & Mediation can help you determine whether a prenuptial agreement belongs in your plans. Contact our office to schedule a confidential consultation and give yourself enough time to complete the process carefully.
Frequently Asked Questions About Prenuptial Agreements and Marriage
Does getting a prenup mean we expect to divorce?
No. Couples seek prenups for many reasons, including business ownership, previous marriages, children from prior relationships, debt, inheritances and simply wanting greater financial clarity before marriage. We find that couples that take the prenuptial agreement creation seriously are just as serious about their marriage success and it helps to lay a foundation for a positive marriage.
Does a prenup affect our finances while we are married?
It can. Arizona law allows premarital agreements to address property rights and obligations, management of property and other lawful personal rights and obligations. The specific effect depends on various terms within your prenuptial agreement.
Can we change our prenup after getting married?
Yes. Under Arizona law, after marriage a premarital agreement may be amended or revoked through a written agreement signed by both parties. It is advised to update your prenuptial agreement each year and to keep the assets and debts list current.
Can a prenup determine child support or custody?
A prenup cannot adversely affect a child’s right to support. Decisions concerning legal decision-making and parenting time are governed by the child’s best interests rather than simply by an agreement made before marriage. The values you share about parenting can be stated in your prenuptial agreement as a guideline.