An Arizona postnuptial agreement outlines the division of property, debts, and other financial matters in the event of divorce or death. It serves as a proactive measure to address potential disputes and ensure fair and equitable distribution of assets.
While a prenuptial agreement is drafted and signed before marriage, this legal document is initiated after the couple is already married, allowing spouses to address financial affairs that may have arisen or changed since the wedding.
Legal Considerations
Postnuptial agreements in the state are primarily governed by statutes related to contracts and family law (sections of Arizona Revised Statutes Title 14 and Title 25).
- Signing Requirements: Both parties must sign personally or by counsel on behalf of a party. Alternatively, the terms can be stated on the record before a judge, commissioner, judge pro tempore, or certified reporter or in an audio recording made before a mediator or a settlement conference officer appointed by the court (Ariz. R. Fam. Law. proc. 69).
- Dividing Property: Community property (§ 25-211).
Asset and Property Rights
Capacity to Contract
- If a party wishes to challenge the validity of the agreement, they bear the burden of proving any defect in the agreement. However, the agreement is presumed valid unless proven otherwise.
- The court may award a party the costs and expenses of maintaining or defending a challenge to the validity of an agreement made in accordance with these rules. [1]
Marriage and Divorce
Waiver of Rights
- A surviving spouse has the right to waive their entitlement to homestead allowance, exempt property, and family allowance, either fully or partially, before or after marriage, through a written contract, agreement, or waiver signed by the surviving spouse. [2]
- Only the court can determine whether a waiver is excessively unjust.
Estate Planning and Inheritance
Nonprobate Transfers on Death
- Provisions for such transfers in various types of documents, including insurance policies, employment contracts, securities, and trusts, are considered nontestamentary. [3]
- The assets designated to be transferred upon death are not subject to the probate process and are instead directly distributed to the specified beneficiaries.
