Prenuptial, prenuptial, prenuptial. These are the three words that anyone considering marriage later in life should remember. And in case you forget these words, you just have to remember two other words: legal fees.
With the excitement of planning a wedding, no one likes to think about prenuptial agreements. Honestly, even the very mention of a prenuptial agreement can be a major romance buster.
“Honey, I am so looking forward to our wedding and spending the rest of our lives together.”
“Darling, I am too. But before we say ‘I do,’ we have to discuss our prenuptial agreement.”
Surely that discussion won’t end with soft music in the background and a crackling fire in the fireplace.
If discussing a prenuptial agreement is so uncomfortable, how could it also be so important? Consider this, in Arizona and New Mexico, both community property states, all assets of married parties are presumed to be community property. This presumption can be rebutted with “clear and convincing” evidence that an asset is not community property, such as showing that the asset was owned by one spouse prior to the marriage.
But even owning an asset prior to the marriage doesn’t keep it from becoming community property later. Some assets can be transmuted from separate property to community property, even without anyone intending the property’s status be changed. For example, consider the case where the husband, hoping to be helpful, makes improvements on couple’s home which is owned by the wife. Or how about where the wife helps manage the husband’s investment portfolio. In either of these situations, the non-owner spouse could claim a community property interest in the property of the other spouse.
Okay, I know what you are thinking now, “We love each other, and we would never try to claim the other person’s property.” While it may be dangerous to assume your marriage won’t end in divorce, let’s pretend divorce isn’t a possibility. But what happens when the husband passes away? Will the husband’s relatives claim that the wife’s home was owned in part by the husband? When the wife passes, will the wife’s relatives want part of the husband’s investment portfolio because “our mother helped him make so much money”?
I don’t know the answers to these questions, or even which party would win if there were a fight. Because this area is so fact specific, the outcome of each case can vary dramatically.
Although I can’t tell you which party would win a fight, I can tell you who always comes out on top—the lawyers. Legal fights cost big money, and the people who get most of that money are the lawyers. I’m not trying to disparage lawyers—I am one—but avoiding a fight in the first place is far better, and cheaper, than winning the fight later on. And how do you avoid having a fight? It comes down to three simple words: prenuptial, prenuptial, prenuptial.
Contributed by MHK Tucson Attorney and Partner Kevin F. Kinghorn
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This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.
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