By Melissa Myers and Michael J. Tucker, Oct. 23, 2014.
Michael J. Tucker: It’s time to talk about postnuptial agreements.
Melissa Myers: Why? Our readers are just now getting the right to marry in Arizona.
Myers: Yes, it’s definitely not all good.
Tucker: Many of our readers have wandered off to other states and gotten married. Now that the courts have brought marriage equality to Arizona, they are going to wake up one morning and they are going to be really, really married.
Myers: Or they’ll go and get married. There’s some pent-up demand.
Tucker: And let’s say we have a reader whose beloved fiancée or spouse has a lot of student loan or credit card debt.
Myers: Or maybe a lot of potential malpractice liability?
Tucker: Exactly. Let’s says she’s an obstetrician or a lawyer.
Myers: The malpractice lawsuits might go after the spouse as well as the professional.
Tucker: I should mention these hypotheticals might be scary, but this isn’t just gay marriage anymore, folks. It’s marriage.
Myers: OK, but we can’t just suggest to our readers that they shouldn’t get married to the love of their life just because of a little bit of debt.
Tucker: Of course not. We’re saying that they can have their cake and eat it, too.
Myers: I have a feeling this is where the prenuptial agreements come in.
Tucker: Yes. Prenuptial agreements — and postnuptial agreements, which are legal in Arizona and many other states — can protect our beloved married clients from each other’s creditors. And that’s a beautiful thing.
Myers: It sounds too good to be true.
Tucker: In a prenuptial agreement or postnuptial agreement, it’s perfectly legal to make a deal that rejects the application of any aspect of community property law.
Myers: So, our readers can have the benefits of marriage, and they can also keep their respective finances separate, to one degree or another.
Tucker: Even though we’re all in the habit of thinking of prenuptial agreements as a “me versus you” kind of arrangement, actually it’s a nuanced and sophisticated use of a prenuptial agreement to create more of an “us versus them” protection for the couple.
Myers: You mean protection against the bill collectors and other creditors.
Myers: So let’s explain what our readers would need to do if they were to explore this idea of entering into a prenuptial or postnuptial agreement.
Tucker: Well, best practices under Arizona law would be for each spouse to be represented by his or her own lawyer in the preparation of the agreement.
Myers: Is that really necessary?
Tucker: The agreement won’t be enforceable as to a spouse who signs it without the benefit of counsel. From the perspective of using the prenuptial agreement to protect the spouses against the claims of each other’s creditors, there is a risk that the creditors could argue that the agreement doesn’t create that protection if the proper formalities weren’t followed.
Myers: Oh, all right. Even though it might be burdensome to involve lawyers in preparing this type of agreement, at least couples still have the choice enter into such a contract, even if the marriage has already happened.
Tucker: That’s right. Although it’s perhaps counterintuitive, couples can be married to each other and still not be legally responsible for each other’s debts.
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