Marital Settlement Agreements: Postnuptials and Separation

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 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 Two?

“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.

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.

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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.

Links to Other Web Sites

• NRS Chapter 123A – Premarital Agreements (uniform act)
• NRS 123.070 – Husband and Wife may Make Contracts
• NRS 123.080 – Contract Altering Legal Relations: Separation Agreement; Consideration; Introduction in evidence in divorce action
• NRS 123.270 – Contracts or Settlements to Be Written and Acknowledged

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