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Premarital/Prenuptial and Marital Agreements

Do I need a premarital agreement?

Although the law doesn’t require a premarital (prenuptial) agreement, some individuals feel more comfortable executing one before marrying. Many couples are reluctant to sign a premarital agreement to avoid giving the impression of doubt in their relationship, but preparing for all possibilities is always wise, since relationships can unexpectedly sour and turn extremely adversarial, as many divorcees could readily tell you.

Nevada is a community property state. That means after marrying, whatever property either spouse acquires during the marriage (income, assets, personal property, real estate, etc.) is considered community property, entitling the other spouse presumptively to a 50% interest in that property. Even if one spouse decides to acquire that property alone, like a car in his or her name, the other spouse can still presumptively claim a 50% interest in that property. Or even if one spouse acquires property prior to marriage, the other spouse can still claim a community property interest in the property if the property is still being paid off after marrying. Debts are also considered communal, where a creditor can pursue the debt against either spouse, regardless of whose name the debt is under. Thus, you may want to create a premarital agreement that dictates certain property or debts will remain in one spouse’s name alone, rather than face an undesirable outcome in court.

You are free to create almost any terms in your agreement, where the law gives broad discretion to individuals in the types of provisions a premarital agreement can include. Thus, you can include terms like denial of alimony, and provisions to encourage or discourage certain behaviors of a spouse, which a court may enforce. The agreement can cover property or debt divisions during and after a marriage, such as if the parties separate or divorce. The agreement can even dictate business interests that your spouse may acquire in any business ventures in which you may partake during the marriage. Hiring an attorney would be in your best interest to ensure your agreement covers all possible present and future interests that may matter to you. In fact, each spouse should have independent legal counsel to review the agreement and to try to resolve any disagreements in an amicable fashion to ensure both spouses’ interests are properly protected, but also to ensure the agreement is valid and enforceable.

What is a postnuptial/marital agreement?

A postnuptial agreement can include terms similar to a premarital agreement, except both parties sign a postnuptial agreement after marrying, compared to signing a premarital agreement before marrying. Like with a premarital agreement, I would strongly suggest retaining an attorney to draft or review the agreement to ensure it is fair and enforceable.

Will a court uphold a premarital or postnuptial agreement?

A court has discretion to not enforce a premarital or postnuptial agreement for reasons that can include the following:  failure of both parties to make a full disclosure of their incomes, assets, and financial obligations at the time of forming the agreement, or to provide a waiver thereof; provisions that provide for illegal conduct or would be against public policy; where one party signed the agreement under duress; or where the agreement may have seemed unconscionable at the time of signing. Hiring an attorney to draft or to review your premarital or postnuptial agreement will greatly increase the chances that a court will enforce the provisions should the time arise.

What about domestic partners?

Registered domestic partners can also form agreements to dictate the partnership and divisions in the event of a termination of the partnership.