Phoenix Prenuptial Agreement Lawyer
At Bishop Law Offices, 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:
- What are prenuptial agreements?
- What are the different types of premarital agreements?
- What are post-marital agreements?
- What are the benefits of prenuptial and post-marital agreements?
- A checklist of what to address in your premarital and post-marital agreements
- How do you plan an effective prenuptial agreement?
- What is a cohabitation agreement?
- How to hire a Phoenix prenuptial agreement lawyer
The terms Premarital Agreement and Prenuptial Agreement are interchangeable, i.e. they are the same thing.
- Premarital agreements can be entered into between two people who are planning on becoming married.
- Premarital agreements are also sometimes referred to as anti-nuptial agreements.
Prenuptial agreements are governed in Arizona by the Arizona Uniform Premarital Agreement Act as set forth in Arizona Revised Statutes Sections 25-201 through 25-205. The statutes, in part, provide that such agreements must be in writing. It is important that the parties disclose in writing their individual assets, debts and incomes as part of the process, or at the very least, include a clause which waives such disclosure requirements. In order to be extra careful, we advise that you do both – i.e. include a list of all assets and debts and include a clause that each party waives any further disclosures of such.
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.
Types of Premarital Agreements
Parties are lawfully entitled to enter into prenuptial agreements (premarital agreements) regarding property interests, income, payment of expenses, spousal maintenance, 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.
One of the major issues we often address in Premarital Agreements regards businesses started prior to marriage. Even though such 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 interests.
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 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 interests.
- Post-marital agreements can be entered into between two people who are already married.
- Post-marital agreements are sometimes referred to as postnuptial agreements.
Post-marital agreements (agreements that are entered into after marriage) can generally address the same issues as prenuptial agreements (see above). If they are properly written, and if procedures are properly followed, such agreements are generally enforceable. Such agreements, however, are not governed by the Uniform Premarital Agreement Act. Pursuant to Arizona law, the burden of proof for enforcing such agreements is upon the person who desires to enforce the agreement, and the burden of proof is more stringent than the burden of proof applicable to premarital agreements.
Many people (and lawyers) overlook post-marital agreements as a potential alternative to divorce or legal separation. It is common knowledge that many divorces are a product of financial disagreements and concerns. Some people are able to hold their marriage together by separating their finances, and believe that if they later get divorced they can keep their separate accounts. However, merely setting up separate accounts will not accomplish this. Community property attorneys in Phoenix will tell you that income earned during the marriage is generally considered community property regardless of whether you keep separate accounts unless you have a valid premarital or post-marital agreement.
Benefits of Premarital & Post-Marital Agreements
It is quite common for one of the parties to desire to enter into a premarital agreement, while the other person feels that such is an indication that the person is “planning for a divorce.” Although such feelings are understandable, modern realities suggest that it makes good common sense to at least look into the possibility of a prenuptial agreement even if you fully intend your marriage to last forever. Marriage itself is a contract in many ways, i.e. many years of court cases and statutes govern property, assets, spousal maintenance and other issues. Many of such court cases were based upon social norms that are outdated and do not take the parties’ actual intent or modern realities into account. Moreover, a well-drafted pre-marital or post-marital agreement can save the parties substantial adversity and lawyer’s fees in the event of divorce as many of the issues are essentially agreed upon in advance. It is our philosophy that a premarital or post-marital agreement is merely providing defined terms, which would otherwise be governed by a different contract — i.e. complex court cases and statutes that are difficult for a non-attorney to understand.
Without a premarital or postmarital agreement, many people make mistakes that lead to results that they did not intend. For example, people often place their premarital sole and separate residence into both parties’ names after marriage. Sometimes such is required by a lending institution if the person refinances the underlying mortgage. In most cases, the courts will hold that the person intended a gift to the community, and the residence will then be divided equally even if such property was purchased prior to the marriage. Similarly, a person may lose his or her claim to pre-marriage financial accounts merely by adding the other person’s name to the account, even if the person only intended that the other spouse would receive it in the event of death. Sometimes, a person’s pre-marriage funds are co-mingled with community income, thus leading to the entire account being divided 50-50 including the sums saved prior to marriage. Many of these issues can be eliminated or clarified by a properly drafted premarital or postmarital agreement.
If a parent has children from prior marriages or other persons that they want to make sure receive at least some assets in the event of the parent’s death, it is especially important to at least consult with a prenuptial attorney prior to marriage. If you have estate planning documents, you may want to revisit them to make sure your desires are spelled out.
Checklist of Key Issues to Address & Include In Your Agreement(s)
The following are potential issues to address in a premarital or post-marital agreement. This list is not all-inclusive, but rather sets forth many of the major issues often addressed in marital agreements:
- Premarital assets
- Personal items owned prior to marriage
- Business interests established prior to marriage
- Business interests established during the marriage
- Income during marriage
- Expenses during marriage
- What happens to property in the event of either person’s death
- Debts incurred prior to marriage
- Debts incurred during marriage
- Assets acquired during marriage
- Retirement funds and pensions
- Insurance policies
- Spousal maintenance
- Inheritance funds and property
Tips For Planning a Prenuptial Agreement
- 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).
- 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.
- Plan ahead of time: Do it as long before the wedding as possible. Although last-minute agreements are arguably enforceable, they may give rise to arguments such as duress. Record the signing: One technique to make prenuptial agreements more effective is to videotape the execution of the agreement. A videotape of the signing can go a long way to show there was no duress or coercion at the time of signing.
- Make it reasonable: Provide full disclosure of assets in the prenuptial agreement. The agreement should not contain unenforceable provisions, such as child support or custody.
Here is the information displayed in a helpful infographic for planning out an effective prenuptial agreement:
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.
How Bishop Law Can Help
It is advisable to always obtain legal advice from a lawyer experienced in drafting premarital or post-marital 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 may save you a great deal of heartache and expense in the future. Contact Bishop Law today