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How Does Having a Prenup Impact the Divorce Process in Arizona?

by | Feb 1, 2022 | Divorce

If you have a prenuptial agreement (a “prenup”), the terms of your agreement could have a significant impact on your divorce. But, there are also limits on the ways in which 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

The ways in which your prenup will impact your divorce depend on the specific terms of the agreement. No two prenups are exactly alike; and, while many prenups cover the same general types of issues, it is how you and your spouse addressed these issues that will determine the role your prenup plays 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 prior to the date of 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 that would normally qualify as the 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 own 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 help reduce the costs of going through the divorce process as well.

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, there are also certain aspects that will not be affected by the existence of a prenuptial agreement. Some examples of these aspects include:

1. Determination of Child Custody

Arizona 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; and, 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 to be based on the Arizona Child Support Guidelines. Since these Guidelines take into account the parents’ incomes, insurance and child care costs, parenting time rights, and various other factors, child support calculations must also necessarily 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 of 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 in accordance with Arizona’s divorce laws.

Is Your Prenup Enforceable Under Arizona Law?

Another important issue to consider is whether your prenup is enforceable under Arizona law. While Arizona generally recognizes the enforceability of prenuptial agreements, there are various factors that 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.

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