Prenuptial Agreements in Nevada

With divorce rates on the rise, the number of couples using prenuptial agreements is increasing. It's important to understand your rights and responsibilities under a premarital agreement before signing. This article provides an overview of prenups in Nevada. If after reading this article you have questions, please contact a local family law attorney for advice.

What Is a Prenuptial Agreement?

A prenuptial agreement or premarital agreement, is a contract between two people who plan to get married. A prenuptial contract won't take effect until a couple actually marries. If the couple cancels their wedding plans, the agreement becomes unenforceable.

Prenuptial agreements must be in writing and signed by both spouses. Unlike a will, a prenup doesn't need to be witnessed or notarized in Nevada. These types of agreements typically resolve marital rights and responsibilities as well as property division in the event of death or divorce.

Who Should Get a Prenuptial Agreement?

Anyone who wants to protect his or her property should get a prenuptial agreement. A premarital contract can help a couple avoid legal battles down the road. A very wealthy individual may use a prenuptial agreement to preserve a family fortune. On the other hand, a recent divorcee may want a prenup to protect a child's inheritance.

Prenuptial agreements aren't a recipe for divorce. In many cases, prenups can help couples sort out finances before they get married and prevent future arguments. Although different couples have different reasons for using premarital contracts, all couples can benefit from a prenuptial agreement.

When two people marry, separate property can become comingled and jointly owned by the spouses. In certain cases, a spouse may want his or her premarital property to remain separate. Without a prenuptial agreement, a couple's property will be divided according to Nevada law in the event of death or divorce. Prenups allow couples to maintain control of property and assets and essentially to control their own destiny.

What Does a Prenuptial Agreement Cover?

A premarital contract can replace a divorce trial in which property is divided and alimony is awarded to a needy spouse. Generally, a prenuptial agreement will decide one or more of the following issues:

• each spouse's rights and obligations in separate or marital property
• each spouse's right to buy, lease, sell or transfer or otherwise control property during the marriage
• the distribution of assets and liabilities in the event of death, divorce or separation
• either spouse's entitlement to alimony
• the preparation of a will to carry out the terms of an agreement
• each spouse's rights to death benefits from the other's life insurance policy
• the state law which governs the agreement, and
• any other issue the couple agrees upon.

While prenuptial agreements can cover a myriad of issues, some subjects are off limits. Specifically, couples can't agree to limit prosecution for a crime like domestic violence or force one spouse to take on the other's debts. Moreover, courts won't enforce any prenup provisions that attempt to govern child custody or support issues.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in Nevada?

The right to child support belongs to the child, not the parents. Parents can't contract away a child's right to financial support through their own prenuptial agreement. Similar to custody, child support is calculated at the time parents separate or divorce. Any provisions in a premarital agreement that attempt to resolve child support will be tossed out.

Furthermore, judges have the final say on child custody. Premarital contracts can't set forth child custody schedules or dictate parental responsibilities. Any custody order will be based on a child's best interests. A child's best interests may change over time, so a child's needs must be evaluated at the time parents separate or divorce, or when they request to modify a custody order.

Will a Nevada Court Enforce My Prenuptial Agreement?

Nevada has followed suit along with the majority of other states by adopting the Uniform Prenuptial Agreement Act (UPAA). The UPAA is a set of rules that govern prenuptial agreements.

A premarital agreement must still follow basic contract principles. An oral prenuptial agreement isn't enforceable. Thus, any premarital agreements must be in writing and signed by the two future spouses. Moreover, a prenuptial agreement must be completed and signed before a couple weds. However, amendments can be made to a prenup after marriage as long as the changes are in writing and signed by the spouses.

A prenuptial agreement isn't enforceable if one spouse proves that:

• he or she didn't sign the agreement voluntarily
• the agreement was severely unfair (unconscionable) when it was signed; and before signing the agreement
  • that spouse wasn't provided a full and accurate picture of the other's assets and liabilities
  • that spouse didn't voluntarily waive in writing his or her right to disclosure of the other spouse's finances, and
  • that spouse could not reasonably have had adequate knowledge of the other spouse's finances.

A number of factors are examined to determine if an agreement was severely unfair or unconscionable. A spouse can't set aside an otherwise valid prenuptial agreement simply because he or she gets less under its terms. Instead, Nevada courts require that the spouse contesting the agreement show that the other spouse failed to disclose significant portions of his or her assets or debts and that the defrauded spouse would not have signed the agreement if he or she had had the full financial picture. A financial discrepancy of a few thousand dollars is generally not enough for a prenuptial agreement to be held invalid. Moreover, a spouse with a significant amount of business experience may have a harder time showing that he or she was defrauded by a prenuptial agreement.

Alimony can be terminated under a prenuptial agreement. Nevertheless, a court can throw out the alimony terms if enforcement would force a spouse to seek state financial assistance in order to make ends meet. Provisions in an agreement that eliminate alimony and leave a spouse destitute will be set aside.

The requirements for prenuptial agreements can be complex. It's important to understand your rights and responsibilities under a prenuptial agreement before signing. If you're considering a prenuptial agreement or have additional questions, contact a local Nevada family law attorney for advice.