Post-Marital, Post-Nuptial & Other Marital Agreements

I. 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 respective financial contributions by each of them 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 of 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 who 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, lack of consideration and regular 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.

II. 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.

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