If you have a prenuptial agreement (a “prenup”), your agreement’s terms could significantly impact your divorce. But, there are limits on how a prenup can impact the divorce process in Arizona. As you prepare to go through your divorce, it will be important to have a clear understanding of the role your prenup will play—and you will also want to make sure you know whether your prenup is enforceable under Arizona law.
4 Ways Your Prenup Could Impact Your Divorce
How your prenup will impact your divorce depends on the agreement’s specific terms. No two prenups are exactly alike, and while many prenups cover the same general types of issues, how you and your spouse address these issues will determine the role your prenups play in your divorce.
Here are four common prenup terms that can have an impact (and potentially a significant impact) on the divorce process in Arizona:
1. Identification of Separate and Marital Property
In Arizona, the default rule is that most assets one spouse owns before marriage are that spouse’s “separate property,” while most assets acquired during the marriage are “marital property.” This distinction is important because, while marital property is subject to equitable distribution, separate property is not.
But fiancés can use a prenup to deviate from the default rule. They can agree that assets normally qualifying as separate property will be treated as marital property or vice versa.
2. Division of Marital Property
Fiancés can also use a prenup to specify how they will divide their marital property in the event of a divorce. For example, a prenup may state that each spouse will keep his or her retirement account, or, if one spouse owns or starts a business, a prenup may state that the business will be distributed solely to that spouse. These types of provisions are often intended to prevent conflicts during the divorce process, and they can also help reduce the costs of going through the divorce process.
3. Division of Debts
Similar to making provisions for the distribution of marital property, a prenup can also be used to address the division of marital debts. In many cases, assets and debts will go hand-in-hand (i.e., homes and mortgages), and it will make sense to address them in tandem.
4. Calculation of Alimony (if Any)
Prenups can also address the subject of alimony. Fiancés can agree to a specific amount of alimony in advance, or they can agree that neither spouse will be liable for alimony should they get divorced. Unlike child support (discussed below), alimony is not mandatory in an Arizona divorce—with a limited exception for circumstances in which eliminating or reducing alimony causes one spouse to become eligible for public assistance. In that scenario, Arizona law provides that a court “may require the other party to provide support to the extent necessary to avoid that eligibility.”
4 Ways Your Prenup Will NOT Impact Your Divorce
While a prenup can play a direct role in certain aspects of the divorce process, certain aspects will not be affected by the existence of a prenuptial agreement. Some examples of these aspects include:
1. Determination of Child Custody
Arizona’s law requires all child custody determinations to be made based on the best interests of the children involved. This “best interests” standard is applied at the time of divorce; as a result, fiancés cannot agree to child custody terms in advance.
2. Calculation of Child Support
Similarly, Arizona law generally requires child support calculations based on the Arizona Child Support Guidelines. Since these Guidelines consider the parents’ incomes, insurance, child care costs, parenting time rights, and various other factors, child support calculations must also be made at the time of divorce. While fiancés can make provisions for certain forms of child-related financial support in a prenup, they generally cannot agree that one parent will pay less than the Guidelines require (or “waive” one parent’s obligation to provide child support).
3. Obligation to Act in Good Faith
While a prenup may give one or both spouses rights that they would not have under other circumstances, both spouses must still act in good faith throughout the divorce process. Neither spouse can claim rights they do not have, and it will still frequently be in both spouses’ best interests to resolve issues falling outside their prenup as amicably as possible.
4. Issues Not Covered in Your Prenup
While prenups will often address property rights and alimony, this is not always the case. If your prenup does not address certain issues—or if it does not cover certain assets or debts—then those issues, assets, or debts (or all of the above) will need to be addressed by Arizona’s divorce laws.
Is Your Prenup Enforceable Under Arizona Law?
Another important issue is whether your prenup is enforceable under Arizona law. While Arizona generally recognizes the enforceability of prenuptial agreements, various factors can render prenups, or specific prenup provisions, unenforceable. For example, under Section 25-202(C) of the Arizona Revised Statutes, a prenup is unenforceable if either: (i) one fiancé did not sign the prenup voluntarily, or (ii) the prenup is unconscionable, and one fiancé did not have a fair opportunity to learn about the other fiancé’s property or financial obligations. If a prenup includes an unlawful provision (i.e., a provision purporting to establish post-divorce custody rights), the Arizona courts have the authority to strike the provision and leave the remainder of the agreement intact.
Talk to a Phoenix Divorce Lawyer for Free
If you have a prenup and are preparing to go through a divorce in Arizona, we invite you to contact us for more information. To get started with a free and confidential consultation, please call 480-542-0099 or inquire online today.