"Only love is on the line when a Massey prenup has been signed." So says George Clooney, playing Beverly Hills divorce lawyer Miles Massey, in the comedy "Intolerable Cruelty."
Clooney's prenuptial agreement was simple: You get nothing. And many people try to write their own prenuptial agreement in terms nearly as simple: "You keep what you have and I keep what I have."
Unfortunately, it isn't that simple. In fact, the prenup is attacked by either the husband or the wife in virtually every divorce case involving one. Obviously, then, you need a hard fighting, straight talking Phoenix Divorce Attorney helping you draft one that both meets your needs and will stand up in court.
Prenuptial agreements (also called premarital agreements) are controlled by the Uniform Premarital Agreement Act, which Arizona has adopted in A.R.S. 25-201 through 25-205. A "premarital agreement" is defined as "an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage." Consideration is not necessary; it does not matter how one-sided the agreement is. The prenuptial agreement can do many things, but is most commonly used to determine property rights and
property division, i.e. community property and debts vs. separate property and debts.
There are, however, certain requirements. First, it must be in writing. In addition, the agreement is not enforceable if the person against whom enforcement is sought proves either of the following:
1. The person did not execute the agreement voluntarily.
2. The agreement was unconscionable when it was executed and before execution of the agreement that person:
(a) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.
(b) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(c) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
So the simple "We each keep what we have" is not sufficient; each person has a right to know what he or she is giving up, so each person has a right to disclosure of the other person's finances.
There should also be evidence that each party had legal counsel as part of the negotiation and drafting process, or at least that both parties could have obtained independent legal counsel, and knowingly waived the right to do so.
There should also be an adequate period of "repose", i.e. a sufficient period of time to reflect upon the agreement and its terms before signing. How much time is enough time? Hard to say. But one would be surprised how often prenups are signed on the wedding day, sometimes on the back of a member of the wedding party.
There are also certain limitations on the prenuptial agreement. The right of a child to support may not be adversely affected by a premarital agreement. In addition, if a provision of a premarital agreement modifies or eliminates spousal support ("alimony") and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
A good prenuptial agreement can protect you in a divorce. A bad one will hurt you. And a really bad one will make you spend a lot of money fighting about it in court, and THEN hurt you. Don't let that happen to you. Have a good lawyer help you do it right.