A postnuptial agreement (sometimes called a postnuptial property settlement agreement or postnuptial property division agreement) is a formal agreement entered into during marriage in order to define each spouse’s property rights in the event of death or divorce.
That is a broad definition. Put another way, a postnuptial agreement is a contract, between a married couple, entered into during the marriage that clarifies property ownership. There is no “magic language” that will create a postnuptial agreement, rather an agreement is a postnuptial agreement when it clearly expresses both spouses’ intent to divide and delineate their separate property and/or community interests. Usually, postnuptial agreements are entered into when divorce is not yet imminent —in other words, the spouses are not anticipating getting divorced.
Under traditional contract law, parties can be bound by the terms of a contract, even if they did not read the contract. Courts generally hold parties to their agreements because each party has bargaining power to kill a deal.
Unsurprisingly, courts do not treat postnuptial agreements exactly like a traditional contract. They understand that agreements between spouses are never going to be true, at-arms-length, transactions because each party’s ability to simply “walk away” from a deal is limited.
In fact, courts treat postnuptial agreements with even greater scrutiny than prenuptial agreements. In a prenuptial agreement, the court presumes that each party still has the ability to walk away from the impending marriage. But in a postnuptial agreement, the court recognizes this option is off the table since the parties have already taken their vows. In addition, Arizona is a signator to the Uniform Premarital Agreement Act which sets forth specific factors which make a premarital agreement valid and enforceable. Those same factors and standards do not apply to postnuptial agreements and there is no prescribed set of standards which the Court must apply in analyzing the validity and enforceability of postnuptial agreements.
Is there a presumption that postnuptial agreements are void or unenforceable? No. Although the Arizona legislature has not explicitly said what will make a postnuptial agreement enforceable, the Arizona Supreme Court has said that there is not a blanket presumption against enforcement of postnuptial agreements.
But the law does impose safeguards. That is why spouses who want to delineate their property interests after marriage should seek legal counsel who will ensure that their postnuptial agreement is expertly drafted to be enforceable.
A few elements will likely make a postnuptial agreement enforceable. First, both spouses need full knowledge of the property involved and their rights to that property. It is best for each spouse to voluntarily and expressly agree in writing that the information about the property involved is adequate. Second, the postnuptial agreement cannot be fraudulent, coerced, inequitable, or unfair. As a rule of thumb, it is an absolute for both spouses to be independently represented by counsel. Independent counsel serves as a procedural safeguard if a spouse later tries to challenge the validity of a postnuptial agreement.
In summary, postnuptial agreements can be a valuable tool for clarifying property rights and providing peace of mind—but only if they are done correctly. Because Arizona courts scrutinize these agreements closely, it is essential to approach them thoughtfully and with the right legal guidance. Whether you are seeking to protect separate assets, clarify financial expectations, or simply plan for the future, working with experienced counsel ensures that your postnuptial agreement is enforceable and fair to both parties. If you are considering a postnuptial agreement, don’t hesitate to seek professional advice to protect you and your spouse.