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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 37842
Experience:  Retired (mostly)
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Am engaged to be married soon, but I have assets that I would

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Am engaged to be married soon, but I have assets that I would like to protect if the relationship were to fail in the future. I live in AZ, a community property state, so I'd like to learn what I need to do prior to marriage to protect my assets, should the marriage fail in the future.

Arizona has a law called the Arizona Uniform Premarital Agreement Act. The law sets out certain mandatory requirements for a premarital agreement ("prenup"). A.R.S. 25-203 provides:

  • A. A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.

  • B. The agreement becomes effective on marriage of the parties.

  • C. 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.

  • D. If a provision of a premarital agreement modifies or eliminates spousal support 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.

  • E. An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

  • F. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.


Historically, premarital agreements receive extremely close scrutiny from a court, because the court recognizes that the parties are usually too emotionally involved to be able to negotiate -- unlike when you negotiate a car or home purchase. Yet a premarital agreement can operate to destroy a spouse's rights to a huge amount of money, dependent upon the success of the parties to the marriage.


So, while it may seem extremely enticing to believe that you can download a free premarital agreement form from the internet, fill-in-the-blanks and save a ton of dough -- reality is that in the overwhelming majority of cases, a premarital agreement that is not made while each party has separate legal representation (two lawyers), will be refused enforcement by the court, in the event of a dissolution of marriage.


I'm not trying to make this a costly exercise, nor am I a "shill" for the legal profession. But, in the case of a premarital agreement, not having two lawyers involved in the negotiation and drafting is likely to be fatal -- and, you won't know it, until the day that you need the agreement the most -- at divorce.


Please let me know if I can be of further assistance.

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