Oberg v. Oberg (mem.)

The promise to remain married is not sufficient to justify an unequal division of property in a post-nuptial agreement
  • The promise to remain married is not sufficient consideration to justify a substantially unequal division of property or waiver of spousal maintenance in a post-nuptial agreement.

Procedural History

The parties were married in 1996. In December 2019, Husband filed a petition for dissolution. Two months before Husband filed for dissolution, the parties signed a post-nuptial agreement (PNA). The parties signed the PNA after Husband discovered that Wife was having an affair. The PNA awarded Husband two community properties and waived spousal maintenance for both parties. The case proceeded by default and a default decree was entered, incorporating the PNA by reference.

Wife filed a motion to set aside the decree, which was denied by the trial court. Wife appealed the denial, and the court of appeals vacated the default decree because the trial court had not addressed whether the PNA was fair and equitable. On remand, the trial court found that the PNA met the requirements of In re Harber’s Estate (free from fraud or undue influence, fair and equitable, both parties acted with full knowledge) and entered an amended decree. Wife appealed the amended decree.


The trial court’s determination that the PNA was enforceable is not supported by the record. To achieve a fair and equitable distribution of community property—even if the parties have a post-nuptial agreement—the superior court thus must consider all evidence, including “the relation of the parties at the time of trial, their ages, financial conditions, opportunities, and the contributions of each to the joint estate.” Wick v. Wick, 107 Ariz. 382, 385 (1971).

Here, the PNA was not fair and equitable because it resulted in a substantially unequal division of property in Husband’s favor, and “Husband’s offer to stay married (at least temporarily) could not justify an agreement to divide community assets unfairly upon dissolution. Cf. A.R.S. § 25-318(A) (division of property “without regard to marital misconduct”).

Oberg v. Oberg, 1 CA-CV 21-0704 FC, 2022 WL 7444228 (App. Oct. 13, 2022) (mem.).