heart-shape card on weathered wood background with text prenup

Premarital, Postnuptial, and Separation Agreements

Nevada adopted the Nevada Premarital Agreements Act in 1989. Premarital agreements (sometimes called “prenuptial agreements”) executed before then are evaluated under the case law decided previously. A premarital agreement must be in writing and signed by both parties, and can govern questions of property, debts, and alimony, during life and upon death.

Such an agreement may not decide child custody, visitation, or support.

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 before and after marriage fall into three general categories: (1) premarital or “prenuptial” agreements; (2) postnuptial agreements; and (3) 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. “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 distinctions are 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.

A prenup is a contract between two people who intend to get married and is best thought of as an opportunity for people to re-write the rules that will govern their marriage, within the bounds of the law, so that their income, property, and other rights and responsibilities will be in accordance with the rules they themselves believe are most appropriate rather than the default rules otherwise automatically applicable. These agreements must be in writing, include a full and fair disclosure of assets and debts, voluntarily signed by both parties, and each party must have the opportunity to consult independent counsel.

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. Parties may not enter into a postnuptial agreement limiting one spouse’s duty of support to the other where they continue to live together a married couple. If the agreement purports to be an integrated agreement, that invalidity may render the entire agreement unenforceable.

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.

Work With Us!

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.

FREQUENTLY ASKED QUESTIONS

Can we agree as to who will own what going forward?

Yes. Under Nevada’s version of the “Uniform Premarital Agreements Act” (“UPAA”), found in chapter 123A of the Nevada Revised Statutes, you can make virtually any arrangement you wish as to ownership of past, present, or future property and debt.

Typical provisions include whether future income will be separate property or community property, and whether a spouse will gain a pro tanto interest in a pre-existing business owned by one party before marriage.

There are a lot of issues to think about: houses, bank accounts, retirement interests, etc. Our checklist tries to provide a primer on what should be considered ahead of time.

Can we agree about custody, or support?

Short answer: No. Any purported agreement about child custody will be meaningless, and could endanger the legitimacy of the entire agreement.

Child support is a bit more subtle. The statute states that “The right of a child to support may not be adversely affected by a premarital agreement.” While that means that child support may not be reduced from whatever may be provided by law, it is possible that additions, such as an obligation for post-secondary (college) expenses, might be acceptable.

Can we agree to specify what alimony, if any, may be provided?

Yes. The Nevada version of the UPAA permits parties to eliminate alimony completely, or to regulate what might be ordered by setting up a formula, a specified sum, or pretty much any other kind of limitation desired.

One exception should be noted. The statute provides that if, by operation of the agreement, one party would be reduced to being on public assistance (welfare), the court cn ignore the prenup to whatever extent is necessary to avoid that party being on public assistance.

Can a prenup state what will happen if someone dies?

Yes. A prenup could cross-reference another document such as a will or trust, or could set out certain required provisions, or both.

Can we include in the agreement who should do and not do what while we are married, or include penalties for bad behavior?

Maybe, but it is largely untested, and almost certainly not a good idea. Thee are some cases indicating that “penalty” clauses for extramarital affairs may not be valid in this “no fault” state, and including other matters, like chores or pretty much anything sexual, are usually frowned upon and could result in the entire agreement being invalidated.

Are there things we should avoid doing to not make an invalid agreement?

Yes. 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.

Are both parties really required to have their own lawyer?

No, but it is a very good idea to do so, because that is the single best defense the person trying to uphold the agreement has to establish that the other party understood what the agreement said and was no under duress, coercion, or other undue pressure to sign the agreement.

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Important Documents

Initial Checklist for Drafting Prenuptial/Premarital Agreement (What to Consider and What Information We Need)
Initial Checklist for Drafting Cohabitation Agreement (What to Consider and What Information We Need)
Nevada Family Law Practice Manual Chapter titled “Premarital, Post-Nuptial, Separation, and Marital Settlement Agreements”
Matrimonial Agreements: Requirements for Validity (Nevada submission to Council of Community Property States Symposium, New Orleans, LA, March 14-17, 2002)
The Risks and Rewards of Post-Nuptial Agreements (Continuing Legal Education materials, Dec. 2, 2009)
The Evolving Concept of Marriage and Coming Convergence of Marital and Non-Marital Property and Support Law (Nevada Lawyer, May 2011)
Model UPAA (Premarital Agreements Act) with commentary–NCCUSL
Pre-nups and Post-nups (CLE, June 2011)

“Focus on Forever” at www.aaml.org, Making Marriages Last.