Prenuptial Agreements
Scottsdale Prenup Lawyer
Should I create a prenup?
Many clients ask me whether a prenup is something they should consider before they get married. As an attorney practicing in a “community property” state, my response is almost always, “Yes, you should consider having a pre-marriage agreement drawn up.”
Under Arizona law after you get married any money earned through your “personal efforts” is deemed to be community property and thereby subject to division if you get a divorce. Any assets that you came into the marriage with are considered your sole and separate property. However, if you do not have a prenuptial agreement, the law says that your separate property assets can be transmuted from sole and separate to community property. This usually occurs when you commingle community property with separate property.
For example, if you have a substantial retirement account before you get married then after you get married you contribute money you earned during the marriage to your retirement account, the entire (separate property) account has been commingled with community property income. This commingling has arguably transmuted (or transformed) the sole and separate retirement account to community property. This means, when you divorce your divorcing spouse can say that your entire retirement account is community property due to the commingling and thereby it should be divided as if it were community property. Do you see how easily this can happen?
Why would I want a prenup?
We all know that prenups can be a source of contention for some couples. However, I tell my clients that by creating a prenup you can at least take the opportunity to talk over and determine how to divide your assets fairly if you part ways in the future. Why not talk this over when you both really like the other person? The alternative is you “talk it over” by paying a costly divorce attorney to talk (argue) for you. Whether you decide to create a pre-marriage contract or not, most can agree that it is generally a great idea to be open about how you manage your personal finances and how you and your partner plan to handle your financial matters together before you tie-the-knot. Please give us a call if you’d like some help having this important conversation.
Reasons you may need a prenup:
- I’m a small business owner and I don’t want a divorce to hurt my livelihood
- I have kids from another relationship and I want them to receive their inheritance if I die
- I have debt and don’t wish to commingle it with a future spouse’s debts and assets
- I’ve been divorced before and I don’t want a legal battle if we break up
- My partner and I don’t manage money in the same way
