Postnuptial Agreement

Very much like a prenuptial agreement except it occurs during the marriage. It must follow all the requirements of a prenuptial agreement to be valid. One key difference between a postnuptial agreement and a prenuptial agreement is the burden of proof. If challenged at the time of the divorce, the person challenging the prenuptial agreement has the burden to prove it is invalid; the person trying to uphold a postnuptial agreement has the burden of proof to prove it is valid.

As you know, Arizona is a community property, meaning that anything either party acquires during marriage—whether it be money, an asset, or a debt, belongs to each party, essentially one half to each party. But that is not how everyone wants to hold their property. Some couples are of the belief that keeping finances separate leads to a happy marriage. In other instances, one spouse might not want to be liable for the other spouse’s actions. In some cases, one party has just received a large inheritance and wants to assure it remains their separate property in the event of a divorce. A postnuptial agreement is an effective solution for those couples looking to escape Arizona’s community property laws. The process of obtaining a postnuptial agreement is the same as that of a prenuptial agreement: The parties must disclose to each other their full financial picture. And there must be an opportunity to negotiate with an opportunity to hire counsel for negotiating, if necessary. The terms of the agreement can deal with the division of some or all community property, may confirm that separate property belongs to one of the spouses, and can determine an amount for spousal maintenance. It cannot include terms regarding legal decision-making and parenting time (a.k.a. custody of the children). The risk of a postnuptial agreement is that it might not hold up in a divorce proceeding. During a divorce, the person who wants to enforce a postnup has the burden of persuading the Court to uphold the agree. In this way, it is different from a prenuptial agreement which is presumed to be valid and the burden is on the person challenging the prenuptial agreement.