Understanding Premarital Agreements

Posted by Jason M. Venditti | May 08, 2019


Under Arizona's Uniform Premarital Agreement Act, A.R.S. 25-201 et seq., “premarital agreement" means an agreement between prospective spouses that is made in contemplation of marriage and becomes effective upon the marriage of the parties.

Enforceability of Premarital Agreements

To be enforceable, a premarital agreement must be in writing and signed by both parties.

The agreement is not enforceable, however, 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.

In addition, the Court may refuse to enforce any provision of a premarital agreement that modifies or eliminates spousal support if that modification or elimination of support causes one party to the agreement to be eligible for public assistance.  In such case, the Court may require the other party to provide support to the extent necessary to avoid that eligibility, notwithstanding the terms of the premarital agreement

Scope of the Agreement

The parties to a premarital agreement may contract with respect to any of the following:

    1.   The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever   acquired or located.
    2.   The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign or create a security interest in,  mortgage, encumber, dispose of or otherwise manage and control property.
    3.   The disposition of property on separation, marital dissolution, death or the occurrence or nonoccurrence of any other event.
    4.   The modification or elimination of spousal support.
    5.   The making of a will, trust or other arrangement to carry out the provisions of the agreement.
    6.   The ownership rights in and disposition of the death benefit from a life insurance policy.
    7.   The choice of law governing the construction of the agreement.
    8.   Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Note, however, under the Act, the right of a child to receive support may not be adversely affected by a premarital agreement.

Amending or Revoking the Agreement

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or revocation is enforceable without consideration.

About the Author

Jason M. Venditti

Jason is an experienced litigator and trial attorney who represents individuals and businesses in a wide variety of matters in state and federal court, mediation, arbitration, and before administrative agencies. [email protected] 480-771-3986