The Basic Requirements for a Valid Agreement
The requirements are straightforward. A prenuptial agreement in Arizona must be in writing and signed by both parties. No additional consideration (something of value exchanged) is needed to make it enforceable. The agreement sits dormant until the wedding day, at which point it becomes binding.
A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
A.R.S. § 25-202(A)If the marriage never happens, the agreement has no legal effect. It only takes effect when the couple marries.
When a Court May Refuse to Enforce It
Not every signed agreement is a fair one. A premarital agreement is not enforceable if the person challenging it can prove one of two things. Either they did not sign voluntarily, or the agreement was unconscionable when it was signed and they were not given proper financial disclosure.
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 was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.
A.R.S. § 25-202(C)Having legal representation for each party when signing a prenuptial agreement is one of the strongest ways to show the agreement was voluntary. It also helps ensure both parties understand the assets and debts being disclosed.
Spousal Maintenance and Separate Property
There is also a safety net for spousal maintenance. If a provision in the agreement eliminates support and that leaves one spouse eligible for public assistance in the event of a divorce, the court can override that provision and require reasonable support.
Whether an agreement is unconscionable is decided by the judge as a matter of law, not by a jury. Under the Arizona revised statute framework, courts look closely at whether both parties understood what they were giving up when they signed.
For couples thinking about signing a prenuptial agreement, proper disclosure of separate property and financial obligations is essential. An agreement that tries to hide assets or debts is far more likely to be thrown out. Taking the time to be transparent up front protects both parties in the event of a divorce or the death of a spouse.