What Is an Arizona Postnuptial Agreement?
An Arizona postnuptial agreement is a contract couples write after they marry to separate their assets. Unlike a prenuptial agreement, which goes into effect once a couple weds, a postnup becomes valid right away. In addition to dividing property, a postnup also decides spousal support. Some benefits of having a postnup include:
- separation of assets
- avoidance of disputes
- protection of financial security
Arizona law addresses the enforcement of prenups, per AZ Rev Stat § 25-202. However, the state does not have a statute regarding the validity of postnups. Instead, Arizona family courts recognize postnups based on legal precedent (In Re Estate of Harber(1969)).
Rule 69 of the Arizona Family Law Procedures governs binding agreements between spouses. It covers the process for attacking a postnup in Arizona. A spouse may challenge a postnup if their partner didn’t disclose all of their finances. They can also dispute it if they were forced into signing or the terms are grossly unfair to one party. The spouse challenging the validity of the document bears the burden of proving their argument.
Without a postnup, couples in Arizona are subject to community property laws (AZ Rev Stat § 25-211). These laws consider property acquired during a marriage to belong to both spouses. The courts split community property 50/50 in a divorce settlement agreement. A postnup lets you and your spouse divide property however you want instead of following the court’s standard process.
How to Write a Postnuptial Agreement in Arizona
Certain components must be included in your Arizona postnuptial agreement to ensure its legal validity. Our step-by-step template helps you produce a court-enforceable document.
- List identifying information: Name both spouses and list your shared address. Identify any children involved.
- Disclose financial assets: Spouses must disclose all assets. Be sure to include everything from bank and retirement accounts to real estate holdings.
- Delineate between separate and marital property: Record any separate property and the spouse who will retain ownership. Describe marital property and how the parties will divide it.
- Protect business ownership: Designate which spouse will maintain business ownership if a divorce occurs.
- Reveal debts: Disclose debts each spouse brought into the marriage and any that have accumulated during the union. Assign a party to pay them off if the marriage ends.
- Determine tax filings: Dictate whether you will file taxes together or separately.
- Assign ownership of marital home: Document which spouse will remain in the marital home following divorce. If it is sold, explain who will get what portion of the proceeds. You also have the option to determine how household expenses are shared during the marriage.
- Plan for pets: A pet custody agreement prevents future disputes over jointly owned pets.
- Set spousal support: Write in the terms of alimony or mutually agree to waive spousal support. Arizona statutes list the default payment procedures for spousal support, but a postnup can overrule them (AZ Rev Stat § 25-319).
- Include additional clauses: Add clauses to address the care of a disabled spouse. You can also determine how assets will go to children if one spouse dies.
- Decide on dispute resolution: Choose the method the parties will use to resolve disagreements.
- Notarize the form: Arizona doesn’t require notary acknowledgment for a postnup, but having a notary witness your signatures is recommended to avoid future challenges.
- Sign and date: Both parties must sign the postnup.
Sample Arizona Postnuptial Agreement
View a free example of an Arizona postnuptial agreement template. Learn what it includes and create your own using our document builder. Available to download as a PDF or Word file.
Legal Requirements and Considerations for Arizona Postnups
The validity of an Arizona postnup depends on fair financial disclosure and voluntary agreement. Explore other requirements below.
Signing Requirements
A postnup must be written and signed by both parties, the same as a prenup under AZ Rev Stat § 25-202.
Legal Representation
State law doesn’t require you to hire an attorney to draft a postnup. However, independent legal representation helps both parties protect their interests.
Excluded Terms
Postnups cannot cover issues of child custody or visitation. Arizona family courts govern these issues, as they consider the child’s best interests.
Waiver of Rights
A surviving spouse in Arizona can waive their rights to a property settlement and inheritance rights, such as a homestead allowance. The person waiving must do so willingly, and the agreement must be fair and conscionable when signed (AZ Rev Stat § 14-2207).
Non-Probate Transfers on Death
Postnups are nontestamentary documents in Arizona. This means that they’re in full effect during a person’s lifetime. However, they cannot outweigh the provisions in a last will. Property listed in a spouse’s will may be awarded to the person named in the will and not necessarily based on the clauses in a postnup (AZ Rev Stat § 14-6101).
