Prenuptial and Marital Agreements in Scottsdale, AZ

Prenuptial agreements have an undeserved reputation. Prenups don’t condemn a marriage, they protect it. A prenup is no different than insurance. If something catastrophic happens, you’re covered. You have one, but never expect to need it. And if you do need it, you will be glad you have it.

Prenuptial agreements can be customized to your specific needs. They can define how your financials, property, businesses, personal items, debts, and even spousal maintenance are handled in the event of a divorce. No fighting over who gets what. This protects your personal property, makes a divorce much more amicable, and can save couples tens of thousands of legal fees and months of stress. It can help couples move on quicker and keep the post-divorce relationship as peaceful as possible, which is especially important when the couple has children together or a blended family.

Common Mistakes Made in Prenuptial Agreements

1. Writing it without an attorney.

   Some people choose to write the prenuptial agreement on their own. This is almost always make a mistake and even small errors can invalidate the prenuptial agreement. Additionally, doing it without an attorney has been known to cause judges to be more skeptical of the validity. They become concerned about the details in how the prenuptial agreement was formed, including whether there is a disparity in education or sophistication between the parties or whether one spouse coerced the other spouse into signing. One mistake can cost hundreds of thousands of dollars. In comparison spending a few thousand to get it done correctly seems like a bargain. Having a lawyer with you in this process is the better route.

2. Starting the process too late.

   Frequently, we get calls the week before the wedding where someone wants to get a prenup written or looked over. This does not really give enough time to complete all the requirements of the prenup. When a prenuptial agreement is done on a rush job, the person challenging the prenup in a divorce may have an argument that they were not able to negotiate or make informed decisions.

3. Surprising your fiancé with the prenuptial agreement at the last minute.

   If you surprise your spouse with a prenuptial agreement days before the wedding, your spouse has a ready-made argument for invalidating the prenuptial agreement should you ever divorce. Discuss the prenuptial agreement with your spouse well ahead of the wedding, keep them informed of the process, and treat them fairly throughout the process.

4. Not planning for contingencies.

   One of the biggest risks with a prenuptial agreement is presuming that you will be in the same financial position or a better financial position at the time of the divorce. Many people commit themselves to financial payouts without asking, “What happens if I don’t actually have the money at the time of the divorce?” We saw this especially in the years after the Great Recession. For instance, in one case, a gentleman committed himself to paying his wife $200,000 at the time of the divorce. But because of the economic downturn, when they did get divorced, he did not have $200,000 to his name. Therefore, he was left with nothing.

   These contingencies should be planned for. A good attorney will help you navigate some of these dangers.

5. Not including a choice-of-law provision within the prenuptial agreement.

   You may be signing the prenuptial agreement in Arizona, but you could be getting divorced somewhere else. That means that a prenuptial agreement formed in Arizona and valid under Arizona law may not be valid elsewhere. For example, California has a 7-day waiting period from when the draft is first presented to a spouse until it may be signed. Arizona has no such requirement. That means that a prenup signed here where the parties sign shortly after seeing the draft would not be valid under California law.

   While many states honor the laws of the state where it was contracted, not all do, and this can weaken your agreement. The absence of a choice of law provision could cause your prenup to be invalidated. The best way to avoid that is to include a provision in your prenuptial agreement for whatever court is assessing its validity to apply Arizona law.

6. Not providing a translator when your spouse speaks English as a second language.

   If you are a native English speaker and you are marrying someone who speaks English a second language, providing them the opportunity to use an interpreter is paramount. Some people even choose to have the prenuptial agreement prepared in both languages.

   Many times, when a couple divorces, if the spouse who speaks English as a second language does not want to be bound by the prenup, they will argue that they did not understand what they are signing. Having the option of using an interpreter and memorializing that option in writing helps alleviate that concern.

7. Trying to take shortcuts.

   Sometimes, when we tell people what the law requires to make a prenuptial agreement valid, they push back. For instance, when they find out they must disclose what each party owns at the time of the marriage, they say to us we already know what is out there—we do not need to prepare a Disclosure Statement. Yes, you do. The law requires it and not doing so could end up invalidating the agreement.

   A prenuptial agreement is not where you want to cut corners and to do the things that are required to make a prenuptial agreement valid because again this is not a normal contract; rather, the court is going to look very closely at the prenuptial agreement, its contents, and how it was formed.

8. Including provisions regarding custody.

   A prenuptial agreement cannot decide how custody will be awarded in the event of a divorce. Court must assess custody, or legal decision making and parenting time as we call it in Arizona, at the time of the divorce. For that reason, provisions regarding custody are not permitted in prenuptial agreements. Moreover, their inclusion could cause the prenuptial agreement to be invalidated.

9. Not including a severability clause.

   A severability clause states that if one portion of the prenuptial agreement is found to be invalid, the remaining portions of the prenuptial agreement will still be valid. This protects against a judge invalidating the entire agreement over one mistake in one section of the agreement.

How a prenup (should) work

The Prenuptial Agreement Process

1. Step One: Discuss the prenuptial agreement with your fiancé.

   This is a conversation that should be had well in advance of the marriage. If the marriage date is approaching, you should have it as soon as possible with your spouse. You will need to see if they are open to a prenuptial agreement. If they are not, you may wish to discuss some of the benefits of a prenuptial agreement including but it helps protect the post-divorce relationship if there is a divorce. You may also need to reassure your spouse that you are not seeking a prenup with the intention of divorcing them and reaffirm that your intention is to be married to them forever, but, if you do get divorced, you want to have both sides to be protected.

2. Step Two: Contact an attorney.

   If you decide to move forward on the prenup, you should contact an attorney and consult with them right away. The purpose of the consultation is to go more in depth on the process, understand what needs to be disclosed, and what kind of terms you are looking to include in the prenuptial agreement.

   Ideally, you will contact an attorney at least two months prior to the marriage date. Realistically, most people contact a lawyer within the final month before the marriage date. That is fine, but it does put more pressure on all parties to get it done.

3. Step Three: Disclosure of assets and liabilities.

   This step is required by law. The legislature believed it was important for both parties to a prenuptial agreement to understand what assets and what liabilities the other party had prior to entering a prenuptial agreement. This ensures that each party makes an informed and intelligent decision when they agree to sign the prenuptial agreement.

4. Step Four: Negotiation.

   Many parties work out their agreements between themselves or with minimal input from lawyers. Some parties have their lawyers negotiate all of it. Either approach is acceptable so long as both parties have a chance to speak with an attorney prior to the agreement being finalized and each party has a chance to negotiate changes to the agreement after meeting with an attorney. Generally, the attorneys themselves have at least one negotiation session.

5. Step Five: Drafting the prenuptial agreement.

   Once a tentative agreement is reached, one of the parties’ lawyers will begin drafting the prenuptial agreement. Their client will review and approve, and the document will be sent to the other attorney to review with the other spouse. The reviewing attorney will notify the preparing attorney of any edits or changes that they might have. Negotiation is still an option until the agreement is signed.

6. Step Six: Signing the agreement.

   Once all the changes and edits are approved by both sides, all that is left to do is sign the agreement. We recommend this being a notarized or witnessed signature.

A postnuptial agreement is an agreement that a married couple makes during their marriage regarding how they will hold property during the marriage, how they will divide after the marriage, and/or how they will decide spousal maintenance in the event of a divorce.

What does a postnuptial agreement accomplish?

A postnuptial agreement is like a prenuptial agreement except that it occurs during the marriage. It allows the parties to define how they will hold property while they are married and/or how they will divide it in a divorce. They can also make a plan for how spousal maintenance will (or will not) be paid in the event of a divorce.

Arizona is a community property state, meaning that anything either party acquires during marriage—whether it be money, an asset, or a debt, belongs to each party, essentially one half to each party.

But that is not how everyone wants to hold their property. Some couples are of the belief that keeping finances separated leads to a happy marriage. In other instances, one spouse might not want to be liable for the other spouse’s actions. In some cases, one party has just received a large inheritance and wants to assure it remains their separate property in the event of a divorce.

A postnuptial agreement is an effective solution for couples looking to escape Arizona’s community property laws. Instead of the state deciding for you how you will hold and/or divide property, the two of you can decide for yourself.

What is the process of obtaining a postnuptial agreement?

The process of obtaining a postnuptial agreement is the same as that of a prenuptial agreement: The parties must disclose to each other their full financial picture. And there must be an opportunity to negotiate with an opportunity to hire counsel for negotiating, if necessary.

The terms of the agreement can deal with the division of some or all community property, may confirm that separate property belongs to one of the spouses, and can determine an amount for spousal maintenance. It cannot include terms regarding legal decision-making and parenting time (a.k.a. custody of the children).

What makes a postnuptial agreement effective?

A postnuptial agreement becomes effective when it is signed by both parties. That makes it distinct from a prenuptial agreement that becomes effective when the parties marry.

What happens when a postnuptial agreement is challenged in a divorce?

The risk of a postnuptial agreement is that it might not hold up in a divorce proceeding. Arizona’s adoption of A.R.S. § 25-202.01 in 2026 made it significantly more likely that a postnuptial agreement will be upheld. Prior to the 2026 adoption, postnuptial agreements were permitted solely as a case law creation (i.e., the Court interpreted the community property statutes and determined that it was permissible to allow prenuptial agreements), and the Courts had said when a postnuptial agreement is challenged, the person seeking to uphold it has the burden of proof (i.e., the person wanting the prenup to be enforced must prove it was valid; if they can’t prove it, it will not be enforced … in simpler terms, being assigned a burden of proof is the legal equivalent of coming to bat with a strike already against you).

The new law switched the burden of proof to the person challenging it.

But the Legislature also created a lesser standard of proof the person challenging a postnuptial must meet as compared to the person challenging a prenuptial agreement. Whereas a prenuptial agreement challenger must show the prenup is “unconscionable” (a very difficult standard), the challenger to a postnuptial agreement must show it is neither fair nor equitable (a much more manageable burden of proof).

Some of the ways a person challenging a postnuptial agreement can meet that burden is by showing that they did not have adequate disclosure of the other party’s assets and debts or they were coerced into signing it.

A separation agreement is an agreement that the parties can enter into at the time they separate or divorce. It must be in writing to be enforceable. The Court can reject a separation agreement only on the basis that it is unfair, but a trial must be held before that conclusion can be made.

Otherwise, state law requires the Court to set forth the agreement into the Decree.

Unlike postnuptial agreements, a separation agreement can include agreements regarding the children. But these agreements are not binding on the Court. The Court can, however, include the parties’ agreements regarding legal decision-making and parenting time (custody) upon a finding that the agreement is reasonable with respect to those terms.

What makes a separation agreement enforceable? The same thing that makes a contract enforceable. In legal terms, that means there must be an offer, acceptance, consideration (i.e., both sides are giving something up), and an actual agreement (in legal terms, “mutual assent”). Additionally, the agreement needs to be in writing, needs to be specific enough for the Court to understand each parties’ obligations under the agreement, and needs to be signed by both parties. Email signatures count as a signature.

A Property Settlement Agreement (PSA) in a divorce is a contract that divides a couple’s property, assets, and debts.

All couples getting a divorce must divide their property in accordance with A.R.S. § 25‑318 but using a Property Settlement Agreement (PSA) is not required. In divorces with limited community property, the parties often include the division of property within the Consent Decree itself. But in divorces with significant community property or if additional language to divide or protect assets is required, the Property Settlement Agreement is used to incorporate protective language to more clearly define the property division and the rights involved. PSAs give the parties (and their lawyers) an opportunity to detail the specifics of the property division; including the ability to more specifically identify the property being awarded, set deadlines for its division and/or sale, and add language that more fully protects the parties. The PSA includes schedules that assign specific assets and debts to each spouse.

A PSA contains four types of provisions:

1. Awards of Property. This determines which spouse gets which asset. The most common type of assets to be divided are homes, businesses, vehicles, bank accounts, pensions, IRA’s, 401(k)s, stocks, and jewelry.
2. Assignment of Debts. This determines which spouse will be responsible for paying which community debt.
3. Spousal Maintenance. If thre is an agreement regarding spousal maintenance, (including an agreement for no spousal maintenance), the terms of that agreement will be included.
4. Protective Language Provisions. These provisions are largely standard across PSAs, but they serve important legal purposes.

Some other things to be aware of with PSAs:

• The Agreement is usually a separate document from the Consent Decree, but it will, at a minimum, be referenced in the Decree and the division contained therein ordered by the Court. The significance of that court order will depend on whether the Agreement is merged with the Decree or is incorporated but not merged. If merged, it is a Court order that cannot be modified later without extraordinary circumstances. If it is not merged, it is a contract, enforceable and modifiable under contract principles. An enforcement may take the parties to civil court rather than family court.
• If the Property Settlement Agreement is challenged, the person challenging it must prove that the terms are unfair. The person challenging it will likely request a Sharp hearing.
• The PSA assigns the debts only between the two spouses; it does not change existing contracts or a creditor’s ability to seek payment from the spouse who is not assigned the debt. For example, if the divorce decree assigns a VISA debt to Husband, VISA can still come after Wife to collect that debt if Husband does not follow through on his responsibility to pay the debt. The protective language of the PSA will not stop VISA from doing this, but it will require Husband to repay Wife for anything VISA collects from her.

Legal separation is almost identical to a divorce in every way except one: You are still married at the end of it. Otherwise, the process and issues are the same: The community property needs to be separated, what happens with the children need to be decided, and the court must rule on whether one party is entitled to child or spousal support from the other party. The only difference is you are still married at the end of the proceedings.

Some people think that just because they are living apart, they are legally separated. That is not a legal separation. You are still married, and still accumulating marital property in the eyes of the law. A legal separation can only happen through the Courts.

There are many reasons why someone might choose to get legally separated. Some of the common reasons are (1) to remain on certain benefits belonging to the other spouse, (2) to avoid liability for the other spouse’s actions or business dealings, (3) for emotional reasons because the parties are not ready to divorce, (4) for religious reasons, or (5) to separate themselves financially.

As for separating the parties financially, legal separation is the strongest option for people who don’t want to live under community property laws but want to remain married. The reason why legal separation is stronger in this regard than a postnuptial agreement is because a postnuptial agreement is more easily set aside or overturned.

Both parties must agree to a legal separation. If either party wants to convert the legal separation into a divorce, they may do so. If at a later date the parties want to divorce they can begin that process.

We Guide You Through Legal Separation

If you are considering legal separation, here are some questions to consider:

• Why is legal separation preferable for you over a divorce?
• What is it that you wish to accomplish with a legal separation?
• Will your spouse be agreeable to doing a legal separation instead of a divorce?
• Do you need to remain on your spouse’s benefits?
• What assets of your spouse’s will you lose if you choose to legally separate instead of continuing your marriage under the community property laws?

Separation vs. Divorce

Here are the most common reasons why people choose to seek a legal separation over a divorce:

1. To Stay on a Spouse’s Benefits
   Many employer benefits, including health insurance, are only available to an employee’s spouse and not to an ex-spouse. This is particularly true with health insurance. So legal separation is often used as a method to separate the parties while allowing one spouse to remain on the other’s spouse’s benefits. If this is your situation, you should speak with your employer’s human resources director to see how legal separation would affect spousal benefits.
2. To Avoid Liability
   Sometimes, a spouse begins to make reckless financial or personal decisions. Arizona is a community property state, so if your spouse gets sued, you are equally liable. But if you are legal separated, the community property laws, including those regarding liability, no longer apply.
3. To Separate Finances
   Some people believe spouses should share finances; others believe spouses are better off keeping their finances separate. Legally separating removes spouses from the community property laws of the state. You should also be aware that post-nuptial and pre-nuptial agreements can accomplish the same, but those documents are subject to challenge at the time of divorce.
4. For Religious/Moral Reasons
   Some people do not believe in divorce, and a legal separation is a way for them to split without ending their marriage.
5. For Emotional Reasons
   A legal separation is a smaller step to take than a divorce. A divorce has finality to it. While that is also true of legal separation when it comes to dividing up finances, the marriage remains intact. And it can be easier emotionally to say, “we’re separating” than it is to say, “we’re divorcing.”
6. Process
   A legal separation follows the same process of a divorce. There must be a Petition, Service, and a Response. If the two spouses come to an agreement, they can submit a Consent Decree to the Court for approval, just like a divorce.Both parties must agree to a legal separation.Post-legal separation. If you decide after being legally separated to divorce, you can file for divorce by filing a Petition. It will need to be served. The focus will be strictly ending the marriage; however, if there are modifiable provisions (commonly, child custody, child support, and spousal maintenance) in the Legal Separation Decree, modification of those terms can be brought as part of the divorce action.

Rule 69 Agreements in Family Law Cases

Why is Rule 69 important?

Among all the family law rules, none may be as important as Rule 69. This rule determines which agreements are valid and binding, and which are not. It also creates the procedure for challenging an agreement, and the potential consequence for a failed challenge.

As most family law cases settle, and as most parties, therefore, enter into a written agreement, and as many individuals may experience “buyer’s remorse” and want to change their agreement, Rule 69 often plays an especially important function in family law cases.

What is a Rule 69 Agreement?

A Rule 69 Agreement is a binding understanding on an aspect of a divorce, child custody, or child support matter. Rule 69 of the Arizona Family Law Procedures defines what makes an agreement binding.

What makes an agreement binding?

For an agreement to be binding, it must meet one of the following criteria: (1) in writing and signed by both parties or their counsel, (2) on the record, or (3) by audio recording before a mediator or court-appointed settlement conference officer. Of these, the first option is, of course, the most prevalent, and the one that is preferred.

What falls under Rule 69?

Rule 69 is meant to govern any matter or case under Title 25 of the Arizona Revised Statutes. See ARFLP Rule 1(a) (“These rules govern procedures in family law cases and all matters arising under Title 25 of the Arizona Revised Statutes”). This includes divorce, custody, child support, legal separation, modifications of support or custody, third-party placement, or visitation, etc. It does not include Orders of Protection, which fall under Title 13, and it does not include dependencies, adoptions, guardianships, or DCS matters, as those fall under Title 8 and are handled by the juvenile court.

What counts as an Agreement?

This may seem like a simple question, but it is a legal question, and that means we need a legal definition. Across all types of law, the law long defined an agreement as occurring where there’s “an offer, acceptance, consideration, a sufficiently specific statement of the parties’ obligations, and mutual assent.” Ertl v. Ertl, 252 Ariz. 308, 312, ¶ 12 (App. 2021).

• An offer and acceptance are self-explanatory, but what is meant by consideration? Consideration, in its simplest terms, is each party gives something up. For example, if you and I agree that you will pay me $10.00 to mow your lawn, you have agreed to give up $10.00, and I have agreed to give up my services in mowing the lawn. In other words, your consideration is the $10.00, mine is the service I will perform.

What is a sufficiently specific statement of the parties’ obligations?

This means it needs to be clear what each party is required to do under the Agreement.

What is mutual assent?

This means the two parties have both indicated that they agree to the terms. It is the “meeting of the minds.” It also prevents this situation: Spouse 1 offers to buy Spouse 2 out of the house for $200,000.00. Spouse 2 never responds, and Spouse 1 withdraws the offer. Three months later, after housing prices plummet, Spouse 2 writes Spouse 1 that they will accept the $200,000.00. Because the offer was withdrawn before it was accepted, there was no mutual assent; therefore, an agreement was not reached. One Arizona case, Ames v. Ames, 239 Ariz. 246 (App. 2016) demonstrates the importance of mutual assent. In that case, Wife missed the deadline for filing to enforce spousal maintenance. She claimed the parties had agreed in writing to extend it. To prove it, she offered emails her former husband had sent. But the emails stated only that he was sorry he was late with a payment or asked her to confirm if she had received the $500 he had sent. Nothing in the email chain gave any indication that he agreed to extend enforcement. The Court of Appeals thus found there was no mutual assent.

What does not count as an Agreement under Rule 69?

Rule 69 announces three ways that an agreement can be reached. That means all other ways are not binding and are not permitted. Let us talk about a few common agreements people try to get the Court to accept:

• A “Handshake Agreement” or Oral Agreement. That is not going to fly in court. As I once heard Judge Judy say to a litigant, “If you want to enforce a Handshake Agreement, go to Handshake Court.” The purpose of Rule 69 is to ensure that agreements are recorded, so there is no guesswork as to whether an agreement is reached.
• An Agreement made via text message. Unless each party has signed their text messages (which is very unlikely), this is not going to fly.

Rule 69 Agreements Three Most Common

Number One: In Writing and Signed by Parties or Counsel

Of the three ways one can make an agreement, this one is not only the most prevalent, but also the most practical as well. The other two ways involve recordings that can sometimes be hard to track down and sometimes can be open to interpretation. For example, for an agreement made on the record in Court, you need to contact the Court to order a CD, you need to download the right app for it (and the one Maricopa County uses is, to put it kindly as possible, not at all user friendly). And to be useful in a subsequent hearing, you are most likely going to need to pay to have it transcribed.

A signed writing, though, is almost always good to go. Most people know where to find either physically or electronically, and if you must go through the Courts to get a copy, it is much easier than getting a CD. It is a much easier form of agreement.

Here is what you should be aware of:

• What counts as ‘writing’? This has not been defined. Obviously, an agreement typed up and printed counts, as does a handwritten agreement. Email counts too. Text message presumably would meet the bill as well. What about an agreement that is typed and sent through a program like DocuSign or Adobe Sign? Yes, those will count as well.
• What counts as a ‘signature’? A physical or electronic signature counts as an official signature. Does that include an email signature? That was the issue in Ertl v. Ertl, 252 Ariz. 308 (App. 2021). The answer: “Signed e-mail communications involving court proceedings involve this state’s judicial branch of government affairs and therefore are considered in writing under Rule 69. Id. at 313 ¶ 13. And an email signature just needs to be a person writing their name at the end of an email. Electronic signatures commonly also include those made via DocuSign or Adobe sign or similar programs, as well as people who write their name after a slash, the letter s, and another slash, i.e., /s/ John Hancock.
• Am I bound by what my lawyer agrees to? Yes, you are. A Rule 69 agreement can be entered into by just the lawyers exchanging emails. This is why the lawyer you pick makes such a difference. Good lawyers are conscientious about what they are sending the other side in emails. Further, good lawyers send proposals and counterproposals to their client for the client’s review and approval before sending it to the other side and will often require their clients confirm back in writing whether they want the lawyer to do. These are added layers to protect you and make sure you are on the same page before an offer is sent out or before an offer from the other side is accepted or rejected.

Number Two: Stated on the record

Under this provision, “the agreement’s terms are stated on the record before a judge, commissioner, judge pro tempore, or certified reporter.” Be aware, though, even when stated on the record, judges will want that agreement reduced to writing and signed. The preference is always for writings.

What does on the record mean? It means that the agreement is stated on a court record. Most commonly, it means that this is done in open court in front of a judge. But it can also be done in a deposition. That is what happened in Gonzalez-Gunter v. Gunter, 249 Ariz. 489 (App. 2020) where the father agreed to pay certain expenses for the children at his deposition. The trial court found his statements were sufficient to create a Rule 69 Agreement, and the Court of Appeals affirmed. Id. at ¶ 18.

What is the difference among a “judge, commissioner, judge pro tempore, or a certified reporter?” Of these, the judge is the highest-ranking, most versatile, and most important to your case. Almost every family law case is heard by a judge. The appointment of a judge is a more rigorous process than the rest. Judicial nominees are vetted by a non-partisan committee who then recommends a list of candidates to the governor; the governor then appoints a judge from those candidates. The difference between a commissioner. They are appointed the presiding judge to handle smaller cases, such as child support, defaults, and orders of protection. A judge pro tempore (JPT) is usually an attorney who occasionally performs judicial functions. In Maricopa County, JPT’s most commonly serve as mediators for Alternative Dispute Resolution conferences (i.e., court-required mediations). And a court reporter is the person who types up testimony as it is being given. (Did you know that the average Court reporter can type over 200 words per minute?)

Number Three: Audio Recording at Settlement Conference or Mediation

Here is an option that we do not recommend you use. If you reach an agreement at a settlement conference or mediation, put it in writing. Yes, you will be there an hour or two more. But it is worthwhile to have it reduced to writing and getting the language worked out without delay.

The History of Rule 69 Agreements

Understanding the development of the rule gives insight into how the rule functions today.

Rule 69 Before 2006

Prior to the Arizona Supreme Court’s adoption of the first set of Family Law Rules, all family law cases fell under the Arizona Rules of Civil Procedure. The forerunner of ARFLP Rule 69 was ARCP Rule 80(d). Rule 80(d), as it existed at the time, was much simpler than the Rule 69 that we have today. It read simply, “No agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing, or made orally in open court, and entered in the minutes.”

The 2006 Rule

The first set of Arizona Rules of Family Law Procedure went into effect January 1, 2006. The first rule was similar to the Rule 80(d), but it allowed agreements “made or confirmed on the record,” and confirmed that record be taken in front of a judge, a commission, a judge pro tempore, or a court reporter.

The first version of Rule 69 lasted five years. The 2011 amendment added a third way an agreement could be made: The parties could enter an agreement via audio recording before a mediator or court-appointed settlement conference officer.

The 2011 Rule

The 2011 amendment’s biggest change was in the procedure it created for challenging a Rule 69 Agreement. First, it created a presumption that the agreement was “valid and binding.” Second, it placed the burden on the person challenging the agreement to show a “defect” in the agreement. Finally, it allowed the Court to award fees, if appropriate, against the party who challenged a Rule 69 Agreement.

The Current Rule

Neither the 2006 original rule nor the 2011 Amendment required the Agreement to be signed. This led to confusion in some cases, as emails and text messages were often being shown to demonstrate an agreement was reached. This was a big concern that was finally addressed in the most recent amendment that went into effect on January 1, 2019.

Under the 2019 Amendment, the agreement must be signed by both parties personally or by their attorneys.

The other major change was the Rule’s clarification that agreements are “binding on the parties” once signed, but not binding on the court until the Court approves the parties’ agreement.

Consult an attorney before entering a family law agreement.

Whenever I call a doctor’s office, the first thing I hear is a recording telling me that if I am calling with an emergency, hang up and dial 9-1-1.

If you are reading this, chances are you are thinking about entering an agreement. If you are thinking about entering into an agreement, and you have not yet spoken with an attorney, you most likely are experiencing an emergency of sorts. Not one that would you require to call 9-1-1, but one that requires you to call an attorney.

At least a few times each month, we get a panicked call from someone who did not take that critical step. We have seen that decision to sign something before meeting with an attorney cost people hundreds of thousands of dollars, even millions.

Whether it is with us or another firm, you should consult with an attorney before you enter into any agreement in your case. That is the best way to protect your interests.