Family Law Ethics
Family Law requires attorneys to represent clients in many complex, adversarial, and challenging situations. The attorney must fulfill a variety of responsibilities to clients, to opposing parties, to the courts, and to third parties as well. The American Bar Association promulgated Model Rules of Professional Conduct in 1983. In 1986, the Nevada Supreme Court adopted those Model Rules as Supreme Court Rules. In 2006, the ethics code was substantially revised in the Ethics 2000 amendments, which also retitled the ethical rules as rules of professional conduct (“RPCs”)
There are ethical codes and rules applicable to all lawyers and pro se litigants in family law cases, including the Model Rules of Professional Conduct and the “Code of Civility” imposed by the Eighth Judicial District Court rules. Additionally, the American Academy of Matrimonial Lawyers has set out aspirational standards of conduct in the Bounds of Advocacy, which is updated from time to time. Fellows of the Academy are strongly encourage to abide by those standards, even though they are not supposed to be used as benchmarks for either professional discipline or malpractice cases. The Bounds of Advocacy address attorney competence, the attorney‑client relationship, interactions with opposing counsel, and more, and while they are not mandatory, they provide valuable guidance regarding professional and acceptable conduct in family law proceedings.
WILLICK LAW GROUP is committed to maintaining the highest standards of professional ethics, while providing zealous advocacy for our clients. Mr. Willick served as Chair of the Nevada Bar Standing Committee on Ethics and Professional Responsibility for some years, and was a member of the “Ethics 2000 Committee,” which proposed changes to Nevada’s attorney ethics code to bring it up to date.
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Are Such Agreements Always Enforceable?
A premarital agreement is not enforceable if the party against whom enforcement is sought proves that it was not executed voluntarily, was “unconscionable” when executed, or if that party did not receive a fair and reasonable disclosure of the property or financial obligations of the other party (or waive that right, knowingly, in writing).
Reviews can be strict. The Nevada Supreme Court has stated that there is a presumed fiduciary relationship between fiancés, and that a presumption of fraud exists where such an agreement greatly disfavors one of the parties.
Generally speaking, the most important factors governing the validity of a premarital agreement are the common-sense ones of full disclosure and availability of independent counsel. The best way of avoiding later claims of oppression, fraud, duress, etc., is to ensure that none such occurs, so that there could be no evidence of any such behavior. Premarital agreements should be negotiated as far in advance of the wedding ceremony as possible, since agreements signed on the eve of (or even during) the wedding ceremony have been struck down as having been inherently signed under duress.
Types of Marital Agreements
Agreements made between couples after marriage fall into two general categories: (1) postnuptial agreements; and (2) separation agreements (also sometimes called property settlements, marital settlements, or marital termination agreements).
What is the Difference Between the Three?
A premarital or “prenuptial” agreement, commonly referred to as a “prenup”, is a legally binding document created by a couple prior to marriage. The prenuptial agreement typically addresses items like the characterization of income during the marriage, division of financial responsibilities, day-to-day living expenses, property distribution, and even its own termination. “Postnuptial agreements” are agreements between spouses who intend to remain married and living together. “Separation agreements” are agreements between spouses who intend to separate. The distinction is important for many reasons, not least of which is authority indicating that if the facts show that the parties did not actually separate after executing a “separation agreement,” the agreement can be attacked as void.
The parties to a postnuptial agreement occupy a “confidential relationship” as in the context of prenuptial agreements, so that full and fair disclosure must be made, the parties must each have the opportunity to consult independent counsel, and the agreement cannot be unconscionable.
If the parties have executed a separation agreement, on the other hand, the parties may be held to not occupy a confidential relationship, and some cases permit a finding that the burden is on each party to discover the other party’s income and assets in preparation for divorce. Thus, the type of agreement at issue dictates the factors to be reviewed in determining its validity.
A husband and wife may not enter into a postnuptial agreement limiting one spouse’s duty of support to the other where they continue to live together as husband and wife. If the agreement purports to be an integrated agreement, that invalidity may render the entire agreement unenforceable.
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WILLICK LAW GROUP has considerable experience drafting and negotiating all such types of agreements, and litigating the validity of those agreements that are involved in divorce cases. Where appropriate, we will draft, or review, any premarital, postnuptial, or marital settlement agreement.
As with most things, the best way of avoiding challenge to such an agreement is to make sure it is properly put together in the first place. When a client’s case requires attacking or defending such an agreement, this firm’s substantial familiarity with all aspects of such agreements has proven to be of substantial benefit.