Phoenix Prenuptial Agreement Lawyer

At Bishop, Del Vecchio & Beeks Law Office, P.C., we draft prenuptial (premarital) and postnuptial (post-marital) agreements that help protect and define peoples’ income and property interests before, during and after marriage. Our firm also drafts co-habitation and domestic partnership agreements for those partners who are not married but desire to define their property and other legal rights and obligations. To learn more about what roles these important agreements can play, contact a Phoenix prenuptial agreement attorney at one of our offices in Phoenix or Tempe, Arizona.

Summary of Contents:

I. Premarital Agreements In Arizona

  1. Representation for Premarital Agreements.
  2. What is a Prenuptial Agreement / Premarital Agreement?
  3. Types of Premarital Agreements.
  4. Understanding the Legal Principles that Will Apply in Arizona to your Marriage if You Do Not Have a Premarital Agreement.
  5. What Things Can Be Addressed in a Premarital Agreement?
  6. What are the Pros and Cons of a Premarital Agreement?
  7. What Does Arizona Law Require for an Enforceable Premarital Agreement?
  8. Can A Premarital Agreement Be Challenged?
  9. Is the Premarital Agreement Still Enforceable if We Move to Another State?
  10. Is the Premarital Agreement Still Enforceable if We Move to Another Country?
  11. Do I Need an Attorney for a Prenuptial Agreement / Premarital Agreement?
  12. What Type of Attorney Should I Hire for a Prenuptial / Premarital Agreement?
  13. How Much Does It Cost to Draft or Negotiate a Premarital Agreement?
  14. Premarital Agreements – Conclusion.

II. Post-Marital Agreements / Post-Nuptial Agreements

III. Cohabitation and Domestic Partnership Agreements

IV. How Bishop, Del Vecchio & Beeks Law Office, P.C. Can Help

I. Premarital Agreements In Arizona

1. Representation for Premarital Agreements.

The attorneys at Bishop, Del Vecchio & Beeks draft premarital agreements for our clients. We also represent people whose significant others want them to sign such an agreement. Regardless of which side we are on, we go the extra mile to make sure the agreement protects our clients to the extent possible and consistent with our clients’ desires, that our clients fully understand the terms and language of the agreement, and that our clients are fully informed of their options.

Not everyone needs a prenuptial agreement. Sometimes, applicable community property laws are consistent with a person’s desires regarding the marriage. For example, community property laws can protect a person’s pre-marriage property to a certain degree without such agreement. However, there are many claims that can be made in a divorce, which the parties did not intend at the time of marriage. In addition, if there is the possibility that you may move out of Arizona you may find that the marital laws in different states may not provide you the same amount of protection. We make sure that the premarital agreements that we draft are enforceable in all states. A good family law attorney in Phoenix will advise you whether a premarital agreement makes sense for you.

It is always a good idea to at least consult with a qualified pre-marital agreement attorney to understand how such an agreement may benefit or harm them, what options they have, and what the law would otherwise provide if they do not have a premarital agreement.

2. What is a Prenuptial Agreement / Premarital Agreement?

A prenuptial agreement and premarital agreement (sometimes also called an antenuptial agreement) are interchangeable terms and are the same thing. A prenuptial agreement or premarital agreement is a written agreement entered into between prospective spouses in advance of their marriage. The two key components are that the agreement must be in writing and it must be signed prior to marriage. Otherwise, the agreement cannot be termed a premarital or prenuptial agreement under Arizona Statutes (A.R.S. Sections 201 etc.). [See Section II at the end of this article regarding post-marital or postnuptial agreements entered after marriage.]

3. Types of Premarital Agreements.

Parties are lawfully entitled to enter into prenuptial agreements (premarital agreements) regarding property interests, income, payment of expenses, spousal maintenance (alimony), what happens to their property upon their death, and any other terms that are not “unconscionable,” in violation of public policy, or would constitute a crime. Premarital agreement term regarding future child custody and child support are not enforceable.

Prenuptial agreements come in all shapes and sizes. Some people merely want to protect the property that they have acquired prior to marriage as sole and separate property but agree that all income earned during the marriage is community property. Other people desire to enter into a more involved premarital agreement whereby their individual incomes earned after marriage remain his or her sole and separate property. Some people may just want to protect their pre-marriage business interests. Some people merely desire to agree that no spousal maintenance (alimony) will be paid in the event of divorce. Some people may want to ensure that neither spouse can take out debts that effect that party or the community without his or her knowledge and permission.

One of the major issues we often address in Premarital Agreements regards businesses started prior to marriage. Even though such pre-marriage businesses continue to be separate property under Arizona law, the community may have a claim to all or a portion of any increase in value during the marriage. A properly drafted Premarital Agreement can eliminate any such claims.

Another one of the major issues we often address in Premarital Agreements regards homes and other real estate purchased prior to marriage. Again, even though such pre-marriage real estate continues to be separate property under Arizona law, the community may have a claim to a portion of the increase in value during the marriage depending upon the source of payments made regarding the real estate during the marriage. A properly drafted Premarital Agreement can once again eliminate any such claims.

4. Understanding the Legal Principles that Will Apply in Arizona to Your Marriage if You Do Not Have a Premarital Agreement.

It is helpful to understand the basic concepts of Arizona’s community property law that would apply if you do not have a premarital agreement in order to more fully understand what you may want or not want in a premarital agreement.

If you do not enter into a premarital agreement prior to marriage, the following laws will generally apply:

  1. All property acquired by either a husband or wife during the marriage, except that which is acquired by gift, devise or descent, or with a party’s separate funds, is presumed to constitute the community property of husband and wife (i.e., owned 50-50).
  2. Separate property includes, but is not necessarily limited to, all property owned by a spouse before marriage, property acquired by the spouse after marriage by gift, devise or descent (i.e., inheritance), property acquired with separate funds, and also the inherent increases, rents, issues and profits of the foregoing.
  3. All real property (real estate) acquired or titled in joint names during the marriage is presumed to be community property.
  4. Any increase in the value of separate property attributable to a spouse’s management, administration and efforts regarding such property during the marriage may be considered community property.
  5. Sole and separate property may be converted to community property by co-mingling, by title, or by other actions.
  6. A spouse may have a claim to a portion of the equity of a sole and separate asset if the community made certain payments or made efforts to improve such assets.
  7. If a spouse is not self-sufficient financially, such spouse may be entitled to spousal maintenance pursuant to Arizona Revised Statute (A.R.S.) § 25-319.

Sometimes all these basic laws are changed by a premarital agreement. Sometimes only some of these laws are changed by the agreement.

5. What Things Can Be Addressed in a Premarital Agreement?

Most often one or both spouse’s desire a premarital agreement in order to determine their financial rights and responsibilities during marriage and in the event of a divorce or legal separation. Sometimes a premarital agreement may also define what happens financially in the event of either party’s death during the marriage. Premarital agreements often preclude the application of some or all of Arizona community property laws that would otherwise apply. With a few exceptions, the parties can agree in advance on the financial terms that will apply to their marriage and/or in the event of a divorce or legal separation, rather than such being determined by Arizona’s statutes and case law.

The following items are commonly addressed in premarital agreements / prenuptial agreements:

  1. Whether pre-marriage assets continue to be separate property (including any income from such assets and/or increase in value of such assets). An issue often addressed in premarital agreements involves how to characterize pre-marriage business interests, income generated from such businesses during marriage, and any increased value of such business realized during the marriage.
  2. Whether inherited assets continue to be separate property including any income and/or gains realized during marriage from such assets.
  3. How to treat retirement assets. One or both parties may want to keep retirement assets separate, including contributions made during marriage. This can be addressed in a premarital agreement. However, if such plans include 401K, 403B and other federal (ERISA) plans, the parties will also need to sign required documents after they are married in order to maintain control of beneficiary designations.
  4. Whether the spouse’s respective incomes from working will be community (joint) property or separate property. A premarital agreement may sometimes designate some sources of income as separate property and some sources of income as community property.
  5. How certain assets will be owned. For example, the agreement may state that the parties’ marital residence is to constitute community property and to be owned 50/50. Or the agreement may divide ownership in the marital residence based upon the amount each party contributes to the purchase, mortgage payments, etc.
  6. Whether the community may have a claim to a portion of the equity in a separate property business or real estate based upon either party’s efforts or financial contributions made during the marriage.
  7. How expenses are to be paid during the marriage if the premarital agreement requires that each of the parties’ incomes are their separate property. If the parties’ incomes from working are community property, it is generally assumed that such community income will pay their common expenses. However, if the parties’ incomes are deemed separate, the issue of how the expenses are to be paid should be specifically addressed. For example, one spouse may agree to pay certain expenses entirely; or such may be paid equally by each party; or such may be paid proportionate to income. Sometimes the parties do not want specific language regarding how such expenses will be paid or shared, and will agree to address such matters during the marriage depending upon the circumstances at that time.
  8. Whether a spouse may be entitled to spousal maintenance or alimony in the event of a divorce or legal separation. Sometimes the parties leave this provision out of the agreement and thus will leave it to the court (or later agreement by the parties) if the parties are later divorced or legally separated. Sometimes the parties agree that neither party will be entitled to spousal maintenance under any circumstances. Sometimes the parties agree to terms that limit or define how much and/or the conditions upon which spousal maintenance may be awarded. The parties generally have broad ability to define or limit spousal maintenance (with the small exception that Arizona court still can award a limited amount of spousal maintenance regardless of the premarital agreement if one of the parties would otherwise be eligible for public assistance.)
  9. How community liabilities may be incurred. We often include a provision in premarital agreements that no community debt may be incurred that binds the other spouse unless both spouses agree to such debt (i.e., they are both signors on the credit cards, loan agreements, loan guarantees, etc.).
  10. What happens in the event one of the parties dies during the marriage. The parties often agree that they each have full ability to leave their separate property and share of community assets as they desire. However, sometimes we include a term requiring one or both parties to leave the other party as a beneficiary of an asset, life insurance policy, or all or percentage of the other person’s estate in order to provide ongoing security for such person.
  11. It is also common to include provisions that address what happens if certain events occur during the marriage. For example, we may include terms that address what happens if the parties have children together and one of the parties stays home for a period to raise the children. Similarly, what if one of the parties sacrifices his or her career for the other spouse and/or the children?

MAYBE’S:

There are some potential terms of a premarital agreement that one or both spouses may desire that can be difficult to specifically define and enforce. For example, sometimes potential spouses want to include an infidelity clause. As such, the spouses may desire a term that requires financial consequences if one of them cheats on the other. Such provisions are possible, but sometimes difficult to define. For example, does infidelity include emotional cheating or just physical cheating? Does such provision include all forms of physical contact or just intercourse? What type of proof is required to enforce such provision?

A good attorney will discuss these types of clauses with you if you are interested in including them, including the pros and cons of having such provisions.

DO NOT’S:

There are some terms that cannot be included in a premarital agreement that are either contrary to Arizona’s laws and/or against public policy.

  1. You cannot include a term that pre-determines child custody (legal decision making and parenting issues).
  2. You cannot include a term that pre-determines or waives child support.
  3. You cannot include a term that would require a party to violate the law.
  4. You cannot include a term that requires a person to belong to a specific religion or raise the children in a specific religion.
  5. You cannot include a term that violates public policy (such as requiring a certain amount of sex, types of sex, etc.).

Although the inclusion of such “do-not’s” in a premarital agreement may not automatically invalidate the entire premarital agreement, we advise our clients not to even include such clauses based upon the risk that a court could potentially not enforce other terms of the agreement that would otherwise be acceptable.

6. What are the Pros and Cons of a Premarital Agreement?

One of the advantages to a premarital agreement is to simplify the process in the event of a divorce or legal separation regarding financial issues. Such agreement may expedite the divorce process (apart from issues involving children of the marriage, or issues that are not addressed in the premarital agreement). Similarly, having a premarital agreement may lead to substantial savings in attorney fees and costs that may otherwise be incurred if the parties do not have a premarital agreement and are thus leaving it up to the court process.

It is not uncommon for a premarital agreement to benefit one of the spouses more than the other. One person may absolutely require a premarital agreement prior to getting married. The benefit to such person (depending upon the terms of the agreement) may include the ability to protect his or her pre-marital assets (including income or gains to such assets), inheritance, income earned during marriage, not having to pay spousal maintenance in the event of divorce or legal separation, and various other terms.

If you are the “other spouse,” you need to carefully consider whether to sign the agreement, or if changes should be made to make it more fair and to provide you with necessary security. You may eventually suffer financially because of the premarital agreement if you are not able to share in the financial gains during the marriage in the event of a divorce or legal separation. Often the party with limited financial resources is willing to sign a premarital agreement “out of love.” Such spouse may realize a higher standard of living during the marriage, hope that the marriage will last indefinitely, and the terms of the premarital agreement will not affect them. On the other hand, such spouse may have a rude shock if the marriage does not last and the standard of living they enjoyed suddenly disappears.

Oftentimes, a spouse may desire a premarital agreement because of a ‘bad’ divorce that he or she experienced in the past. One of the “pros” to a premarital agreement, at least regarding the spouse that desires such an agreement, is that he or she feels more secure in the marriage knowing that he or she will not suffer the same financial consequences in the event of a divorce that he or she may otherwise face.

One of the “cons” to a premarital agreement may of course include the emotional toil that such agreement may cause between the spouses. If one of the spouses feels that the agreement is unfair during the marriage, such spouse may harbor resentment and the marriage may not be “happily ever after.” This may start off as general discontent and grow to be a larger and larger thorn in the marriage. These are things that both parties should think through in advance of getting married, and possibly attend counseling to discuss. One of saving graces is that the parties can always amend the premarital agreement during the marriage if circumstances change and the parties mutually conclude the agreement as written is no longer reasonable under the circumstances.

Premarital agreements are becoming more and more commonplace in society. Decades ago, spouses often stayed in marriages out of obligation, because of societal expectations, because of their children, because of their religion, and due to various other obstacles. In our ‘modern society’ it is a reality that approximately 50% of marriages do not last. When you become married without a premarital agreement, you still essentially enter into an agreement. Such agreement is that you will be bound by the marital laws where you reside (or where the divorce is initiated). Most people do not understand the complexities of such laws. Thus, a premarital agreement should at the very least define what the financial expectations are of the parties during the marriage and in the event of divorce. In addition, the laws that would otherwise apply may not be fair in and of themselves to your particular situation. A premarital agreement can be specifically adapted to current realities, including the fact that one or both spouses have had prior divorces and desire to avoid or limit the financial complexities, emotional toil, financial detriment and other consequences if the marriage does not last.

Hopefully your marriage will last ‘forever,’ and your premarital agreement will merely serve as insurance to one or the both of you. Nevertheless, entering into a premarital agreement is a very important decision. Regardless of whether you are the spouse that desires a premarital agreement or the other spouse, it is important that you retain a good attorney that will discuss your alternatives, the pros and cons of various potential terms of the agreement and ensure that you fully understand what you are signing before you finalize such agreement.

7. What Does Arizona Law Require for an Enforceable Premarital Agreement?

I sometimes refer to a premarital agreement as a “contract on steroids.” Thus, while a premarital agreement is often referred to as a contract in court decisions, it is subject to specific Arizona statutes rather than common contract laws. As such, most contract defenses are not generally applicable to premarital agreements.

In Arizona, premarital agreements are governed by Arizona Revised Statutes Sections 25-202 through 25-205. If properly drafted, such agreements are very much enforceable subject to only very limited exceptions.

As noted previously, premarital agreements must be in writing and signed by both parties prior to marriage. Premarital agreements are enforceable in Arizona unless the party challenging such agreement can establish that: (1) they did not enter the agreement voluntarily; or (2) that the agreement was “unconscionable when it was executed” – AND – the person was not provided a fair disclosure of the other party’s assets and debts as of the time of marriage, did not and could not have independent knowledge of the other party’s assets and debts, AND did not waive such rights to disclosure in writing.

8. Can A Premarital Agreement Be Challenged?

It is not uncommon for a party to ‘attempt’ to challenge a premarital agreement during divorce proceedings. One can attempt to high jump 10 feet – it does not mean they will succeed. Sometimes a party may challenge a premarital agreement at the beginning of the divorce proceedings in order to obtain leverage for negotiation purposes. At the end of the day, a properly written premarital agreement should withstand any challenge. A party that does not have a good faith basis to challenge a properly drafted premarital agreement may end up having to pay a portion of the other party’s attorney’s fees and costs or other sanctions. If we are your attorney in the divorce proceeding, we will often file a “Motion for Partial Summary Judgment,” which means that we will request that the Court find that the premarital agreement is enforceable without having to go to trial.

As set forth above, there are only limited statutory defenses to the enforcement of a premarital agreement. The first defense, i.e., that a party did not voluntarily sign the agreement, is difficult to establish. The burden of proving this is on the person who claims they did not voluntarily sign the agreement. Case law has made it clear that the mere threat of not getting married does not mean that a party did not sign the agreement voluntarily. There is nothing ‘legally’ improper with requiring the other party to sign such agreement as a condition to get married. Although such may not present the perfect picture of ‘love and romance’ the threat of not getting married is not a legal defense to the enforceability of a premarital agreement. In order to prove that one did not voluntarily sign the agreement, one would generally have to establish fraud, for example that they were told the document was something else and that they were not allowed to review the document. The other ‘very unlikely’ scenario is that they signed the document under the threat of physical force.

Caselaw decisions have stated that the failure to read a premarital agreement before signing it is also not a defense. Again, the failure to read a document or the inability to understand the document does not mean that a person did not voluntarily sign the document.

The other defense outlined in the prior section, i.e., “unconscionability,” is equally difficult to establish, especially because one would have to establish that the terms are not only “unconscionable” at the time the document was signed, but that there was no disclosure of assets and liabilities prior to marriage – and – the person did not have the ability to know or obtain such information. In other words, a document could be theoretically “unconscionable” and still be enforceable so long as there was adequate disclosure or knowledge of the other person’s assets and debts at the time of marriage, or such disclosure was waived.

In order to show something is “unconscionable,” a party would have to establish that such term is extremely unreasonable or “shocking.” There are few if any examples in published case decisions in the United States of an unconscionable term outside of those that are illegal or against public policy. The issue is not whether an agreement is “unfair” as lack of fairness is not a legal defense to the enforceability of a premarital agreement in Arizona.

The fact that the court would have to find the agreement is both unconscionable at the time of execution – and – that there was no disclosure of assets and liabilities makes this a very difficult defense. All good attorneys involved in the drafting of premarital agreements make sure that adequate disclosure is made and/or include provisions in the premarital agreement that such disclosure requirements have been waived.

Notwithstanding the discussion above, the fact that a premarital agreement is technically enforceable does not mean that it will be interpreted in the manner you may have intended. Thus, it is important that the premarital agreement is properly written – preferably by an attorney who is an expert in drafting such agreements. Sometimes such agreements have ambiguous terms or contain conflicting clauses. In such event, only the portions of the agreement that are consistent and not ambiguous may be enforceable. In extreme cases, such ambiguous or conflicting language may undercut the most important reasons for the premarital agreement. Some people feel that they can skip having an attorney because they have access to forms on-line. The problem is that such forms have not been approved by the courts and are often incomplete, ambiguous and/or inconsistent. Oftentimes people have specific concerns that the on-line forms do not address. Changes to certain provisions may require the re-writing or inclusion of additional provisions to avoid ambiguity or inconsistency. Premarital agreements, if properly drafted, should be thorough, unambiguous and consistent in their terms. Like open heart surgery, premarital agreements should be left to the experts (See what type of attorney you should hire in Section 12 below).

There are also things that a spouse can do during marriage that may eliminate some of the protections provided by a premarital agreement, such as adding their spouse to the title of certain property, co-mingling separate and community funds, and other possible mistakes. When we draft premarital agreements, we attempt to protect you against such possible mistakes or allow the reversal of such mistakes. However, it is important that your attorney provide you with sufficient information so that you can avoid inadvertent mistakes during marriage that may undercut the protections provided by your agreement.

Finally, the Arizona statutes include a section (A.R.S. Section 25-205) that allows for the possibility of “equitable defenses” limiting the time for enforcement of a premarital agreement, including “laches and estoppel.” As set forth above, it is important that the premarital agreement is properly drafted, that your actions during marriage are consistent with the terms of the premarital agreement, and that your attorney explains to you the best way to ensure that such potential defenses are not successful in the event of divorce or legal separation.

9. Is the Premarital Agreement Still Enforceable if We Move to Another State?

The majority of states (28 of 50), including Arizona, have adopted the Uniform Premarital Agreement Act, which means that such states have identical or substantially the same statutes as the other such states. The other 22 states allow premarital agreements in general, but do not necessarily have the same strict standard of enforcement (for example, fairness may be a requirement in some of these states).

In order to alleviate the concerns regarding the enforceability of the agreement within the United States, good attorneys always include a “choice of law” provision in the premarital agreement. This means that if the parties intend to at least initially reside in Arizona, we include a provision in the agreement that states that Arizona law will apply to the interpretation and enforcement of the agreement even if the parties move to another state and even if another state has jurisdiction over the parties and issues in the divorce. These choice of law provisions are important and are almost always enforceable (with very few exceptions) within the United States. Thus, even if that other state did not adopt the Uniform Premarital Agreement Act, it would generally be required to interpret and enforce the agreement pursuant to Arizona’s statutes.

10. Is the Premarital Agreement Still Enforceable if We Move to Another Country?

Most countries will recognize a premarital agreement drafted in the United States; however, there are some countries that are not as amiable to applying the laws of our country.

Most Western European countries subscribe to the Hague Convention on the Law Applicable to Matrimonial Regimes, which provides uniform regulations regarding premarital agreements. Although the United States has adopted certain provisions of the Hague Convention (i.e., most notably regarding child custody and child abduction cases), the United States has not adopted the Hague Convention on the Law Applicable to Matrimonial Regimes. However, the United States and the Western European countries generally enforce properly written premarital agreements entered in the other countries so long as they do not violate the fundamental public policies of that country.

If you are aware at the time of your marriage that you are likely to move to another country or spend a great part of the year living in another country (for example your home country or your spouse’s home country), it is a good idea to consult with attorneys from both countries. For example, what if you intend to eventually move to Mexico? In Mexico, for example, premarital agreements are very standardized and allow choices including separate property regimes and common property regimes. Such agreements must be drafted by a “Notaire” (this is different than a notary public; such is more like an attorney). In such event, it may be prudent to have both a United States premarital agreement and a Mexico agreement which either duplicates the language in the United States agreement or at least incorporates the United States agreement.

Most countries will recognize a choice of law provision (similar to what we discussed in the preceding section). Thus, it is important to include a similar provision such as: “The laws of the United States of America, State of Arizona, will be applied to the interpretation and enforcement of this Agreement regardless of the state or country that the parties subsequently reside.”

Again, if you intend to move to a foreign country, it is always a good idea to have an experienced attorney in that country review your premarital agreement to ensure that it is enforceable and to identify any concerns that you may have.

11. Do I Need an Attorney for a Prenuptial Agreement / Premarital Agreement?

As stated above, it is important that the premarital agreement is thorough, unambiguous and does not contain inconsistent terms. As such, it is highly recommended that you have an experienced attorney draft the agreement after consulting with you regarding your desires and options. A good attorney who has a lot of experience in drafting (and litigating) premarital agreements will be more likely to provide creative options that address your concerns and will be more likely to address potential things that could happen during your marriage that you may not have otherwise thought about.

Although the other party is not required to have an attorney under Arizona law, it is always a good idea that the other party at least consult with an attorney in order to fully understand what the agreement says (in some cases, the party that desires the premarital agreement will pay for the other party to retain an attorney to review the agreement). For enforcement purposes, it is more difficult to challenge the enforceability of an agreement if the party consulted with an attorney and the attorney signs the certification that he or she explained the terms of the agreement to the party.

As set forth in section 13 below, the cost of preparing and/or negotiating a premarital agreement is generally miniscule in comparison to the protections it is intended to provide.

12. What Type of Attorney Should I Hire for a Prenuptial / Premarital Agreement?

The majority of premarital agreements are drafted by family law / divorce lawyers because the main reason for a premarital agreement is to address what happens in the event of a divorce. However, there are numerous general practitioners, estate planning attorneys and attorneys practicing in various other areas of the law that will draft them as well. At the risk of sounding biased, it is our opinion that the best type of attorney to retain to draft or negotiate a premarital agreement is an expert in family and divorce law. The reason we say this is that experienced family law / divorce law attorneys have a more intricate knowledge of the law that applies absent a premarital agreement and have experience in the various issues that could arise in a divorce. An even better choice in our opinion would be a divorce / family law attorney who has specific experience litigating issues involving the interpretation and enforcement of premarital agreements.

The managing partner of our firm, William (Bill) Bishop, focuses his practice primarily on premarital agreements and mediation. Bill has drafted well over one-hundred premarital agreements and has litigated the interpretation and enforcement of both Arizona and foreign premarital agreements during his 33 years of practicing divorce and family law. Just call (602) 749-8500 to schedule your in-person, video or telephone consultation with Mr. Bishop to discuss your options.

13. How Much Does It Cost to Draft or Negotiate a Premarital Agreement?

It is our goal to be completely transparent regarding our anticipated fees and costs associated with drafting and negotiating premarital agreements. It is much easier to provide an accurate estimate regarding premarital agreements than the fees and costs associated with divorce litigation.

Some law firms charge very high rates to draft premarital agreements. At Bishop Del Vecchio & Beeks, we have kept our fees for Premarital Agreements the same for several years. We typically charge $2,500.00 to draft and negotiate the terms of the premarital agreement. If we are hired by the other party to review and potentially negotiate changes to a premarital agreement drafted by the other attorney, our fees generally fall within this same range.

Our attorneys provide a discount rate for the first hour of your consultation in the amount of $300. This is generally enough time to gather the information necessary for the first draft of the premarital agreement. If we need to review a premarital agreement drafted by the other party’s attorney, the time for such review is included as part of the first consultation (usually the review of the premarital agreement takes about 30 minutes, which leaves 30 minutes remaining for the initial consultation). After the first hour, our hourly fees range from $425 – $550. As stated above, we can usually complete the entire process for $2,500.

Disclaimer: Although rare, there are some cases that require more time including a client’s desire for complex formulas, and/or where the respective parties are far apart on the issues and more extensive negotiation and revisions to the agreement are necessary.

Additional costs may apply if the parties desire verbal testimony before a court reporter to confirm their agreements to the terms as well as the cost of the transcript of such testimony. In such cases, our fees generally do not exceed $3,500.

14. Premarital Agreements – Conclusion.

There are many reasons to consider having a premarital agreement. Sometimes this includes bad experiences from prior marriages. Sometimes it is to protect children that a person has from a prior marriage or relationship. Oftentimes a person wants to segregate assets and income which are a product of his or her years of hard work and investment in their career, businesses etc. and to provide a level of protection against potentially unfair consequences in the event of divorce.

It is always advantageous to consult with an expert premarital agreement attorney in advance of your marriage to discuss your alternatives. All such consultations are confidential on our end. Even if you do not end up getting a premarital agreement, it is smart to understand what could happen if your marriage does not work out, to learn how to protect yourself to the extent possible, and to structure your finances accordingly.

II. Post-Marital Agreements / Post-Nuptial Agreements

Sometimes during an existing marriage one or both parties may desire a post-marital agreement. A post marital agreement is an agreement entered into between the spouses at some point during their marriage and generally assumes that they do not already have a premarital agreement (if they had a premarital agreement, such could be amended rather than drafting a post marital agreement). A post-marital agreement (sometimes called a post-nuptial agreement) can address the same issues as a pre-marital agreement. Some spouses may desire a post marital agreement because he or she feels that the financial contributions by the parties are not fair. Some spouses may desire such an agreement if the other spouse is racking up community debt. Some spouses may want to divide up assets or provide one spouse with the lion’s share of the assets in order to protect such assets as a result of mounting medical bills or other potential liabilities by one of the spouses. Some spouses find that dividing their finances will cause less friction and stress in their marriage and may decide to enter into a post-marital agreement as opposed to seeking a divorce.

One must be careful in drafting post marital agreements as the burden of proving that such are enforceable is different than what applies to premarital agreements. If one of the parties disputes the post marital agreement during a divorce proceeding, the party that desires to enforce the agreement has the burden of proof to establish that the agreement was fair, that the other spouse had full knowledge of the assets and debts at issue, and had full knowledge of their legal rights at the time the agreement was entered. Accordingly, to ensure the enforceability of a post marital agreement, the division of assets in the agreement should be based upon fair valuations and a fair division as of the time of the agreement (unless the parties decide to continue to co-own such community assets jointly). Defenses such as duress, unfairness and similar contract defenses are available in post marital agreement cases, which is different than premarital agreement cases.

Separation agreements are different than post marital agreements. Separation agreements are generally entered into where you desire to live separate and apart, and you wish to enter into agreements that govern your physical separation and potential divorce. These are also generally enforceable. See Arizona Revised Statutes Section 25-317.

A post marital agreement is certainly a good option for people that have specific concerns about continuing to accrue community assets and debts but want to stay married at least for the foreseeable future. However, in order to ensure the enforceability of the agreement to the full extent possible, it is especially important to hire a very experienced and knowledgeable divorce and family law expert attorney to discuss your options with you and to draft the post-marital agreement on your behalf.

Tips For Planning a Prenuptial Agreement

  1. Hire an attorney: Prenuptial agreements are legal documents. Get a good attorney who’s experienced with these documents to protect you. Improperly drafted premarital and postmarital agreements can lead to disaster (for example, the agreement can be found unenforceable).
  2. Hire separate attorneys: You and your significant other should hire separate lawyers. There will be a conflict of interest if you share the same lawyer. You want a lawyer to represent your best interests.
  3. Plan: Do it as long before the wedding as possible. Although last-minute premarital agreements are generally enforceable, they may give rise to certain arguments.
  4. Enforceable: Provide full disclosure of assets and liabilities in the prenuptial agreement.
  5. Do not’s: Do not include unenforceable terms such as child support or custody in the agreement.
  6. Transportable: Make sure it is enforceable in other states or countries if you move.

III. Cohabitation and Domestic Partnership Agreements

As noted above, cohabitation agreements (also called domestic partner agreements) can be drafted when people reside together or intend to reside together. Such may apply to same-sex couples, heterosexual couples, or platonic friends or family members. Such agreements, if they are properly written and if procedures are followed, are generally enforceable. Cohabitation and Domestic Partner agreements can address the same issues as premarital and post-marital agreements as described above. For example, people may desire to own a home together equally or in different percentages. Cohabitation agreements should address how expenses are shared. Such can also address what will happen in the event of a parties’ death. Like marriages, some domestic partner relationships terminate over time. Even if you plan on residing together for the rest of your lives, it is smart to address how the financial issues are going to be addressed. Such may save a great deal of heartache and expense in the future.

On a somewhat related note, if a same-sex couple intends to have a child where only one is the biological parent, or one desires to adopt a child and such is not a two party adoption, it is very important to consult with an experienced Phoenix family law attorney.

IV. How Bishop, Del Vecchio & Beeks Law Office, P.C. Can Help

It is advisable to always obtain legal advice from a lawyer experienced in drafting premarital or post-marital agreements or domestic partnership agreements prior to executing such agreement. Although legal counsel is not “required” by Arizona law, there is a much higher risk that a premarital or post-marital agreement will be “thrown out” or lead to litigation if the document is not properly drafted and/or if parties do not have independent legal counsel.

Premarital and post-marital agreements received from forms stores or non-attorneys can be poorly drafted and can lead to major problems. In fact, some agreements drafted by attorneys are poorly drafted and lead to litigation and substantial attorneys fees. For example, some agreements may state that a person’s future income is his or her sole and separate property, but then fail to address how joint expenses are to be paid. Some agreements drafted by inexperienced attorneys are ambiguous or have conflicting terms that could give rise to the agreement being only partially enforceable or may lead to the premarital agreement being held as unenforceable altogether.

Consulting with a Phoenix prenuptial agreement lawyer who is experienced in drafting and litigating premarital agreements, post-marital agreements, and domestic partnership agreements may save you a great deal of heartache and expense in the future. Contact Bishop, Del Vecchio & Beeks Law Office, P.C. today.