Most experienced Arizona divorce attorneys will advise their clients to sign a prenuptial agreement if the lawyer has had an opportunity to review the agreement. Prenuptial agreements go a long way toward eliminating much of the anger and stress associated with a contested divorce. However, divorces, like marriages, do not always work out as anticipated by the parties. A person who signed a prenuptial agreement in good faith can find out months or even years after the marriage that the agreement is both unfair and oppressive. Can such an agreement be declared void?
The answer is “yes”
The answer is “yes,” but getting to “yes” may be difficult. To be enforceable in Arizona, a prenuptial agreement must be signed by both parties before the wedding, and like a will, signed by two witnesses. If either of these requirements was not followed, the agreement is invalid and cannot be enforced in court. Because most prenuptial agreements are drafted by experienced divorce attorneys, the formal requirements are seldom overlooked.
Fraud and duress
The more powerful argument that can be used to escape a prenuptial agreement is a showing that the agreement was procured by fraud or duress. To prove such a case, the person seeking to escape enforcement of the agreement must prove that he or she was not provided an opportunity to obtain fair and reasonable disclosure of the financial obligations of the other party. An additional ground for avoiding a prenuptial agreement is proof that the party seeking to avoid the agreement did not or reasonably could not have an adequate knowledge of the other party’s financial assets or obligations. If the party with greater wealth is also the party asking for the agreement to been enforced, the failure to disclose assets will be deemed to have been fraudulent, and the agreement will not be enforced.
Arizona law instructs the judge before whom the agreement is disputed to decide the issue “as a matter of law,” which means that the judge has the last say in the matter.
Escaping an oppressive premarital agreement is not easy, but it can be accomplished. An experienced divorce attorney can provide a helpful evaluation of the agreement and the chances for avoiding enforcement of the agreement.