Prenuptial Agreements (What, When, Why, & How)

Prenup Meaning

A prenuptial agreement or “prenup” is a written contract executed prior to a marriage. A prenup typically modifies the terms of a marital arrangement regarding the ownership and division of assets and property in the event the marriage fails at some point in the future. Prenups are often executed when there are substantial assets brought into the marriage by one or both spouses.

When is a Prenuptial Agreement Important?

Not every couple needs a prenup. If it’s the first marriage, there are no children, and few assets, then there is no reason to go through the extra pre-wedding work.

On the other hand, if any of the following applies to you or your spouse, discussing a prenuptial agreement might be a good idea.

  • Assets going into the marriage
  • Children from previous marriage or partner
  • Second or third marriage
  • Business ownership
  • Expectation of inheriting money or property

Nevada is an equal distribution state. That means that half of the community assets go to each spouse upon divorce. Commingled assets are also community property and are split 50/50 with your spouse upon divorce.

Benefits of a Prenup

A prenup can help to avoid potential conflicts over money if the marriage dissolves, which can speed up the divorce process and make it less acrimonious. In the event of a spouse’s death, a prenup can ensure the wishes of the spouse are executed in the absence of a valid will.

Prenup Law – What’s in the Agreement?

Under the UPAA, parties to a prenuptial agreement are allowed to agree with regard to:

  • Rights of property which the parties already have or might acquire during the marriage;
  • Any rights to buy, sell, lease or mortgage such property;
  • The disposition of property upon separation, divorce, or death of one of the parties;
  • Alimony;
  • Any other rights and obligations of the parties which are allowed to be governed by private contract, i.e., are not governed by statute.

Are Prenuptial Agreements Enforced in Divorce Court?

Yes. The exception is when the judge finds defects in the negotiation of the agreement or content of the prenuptial agreement. As long as your prenuptial agreement seems reasonable, the judge will enforce it. Keep in mind they are heavily scrutinized for any suggestion of extreme unfairness to one spouse or pressure for one spouse to sign.

When are Prenups Not Enforced?

For any contract to be binding (whether it’s a contract between spouses or businesses or anybody else) both parties must enter knowingly and without any coercion, duress, or fraud.

Duress (aka Pressure)

Both spouses must sign the agreement voluntarily. If one party signs under duress, then the contract is not enforceable. Duress is the legal term for pressure. Agreements are often executed under some type of pressure. That means not every kind of pressure counts as duress.

Fair and Reasonable Disclosure

The UPAA (Uniform Premarital Agreement Act) requires that both parties be provided with a “fair and reasonable disclosure.” If you conceal assets or debts from your spouse while asking them to sign a prenup, then you can run into disclosure issues.

If the contract is fundamentally unfair (the legal term is “unconscionable”) to one spouse, then the state of Nevada may choose not to uphold it. Other states will enforce a one-sided prenuptial agreement so long as both people signed with full disclosure.

In the Fick case, the court invalidated the prenuptial agreement because it was unfair. According to the agreement, the wife would not receive any alimony.  It also gave the wife much less community property than she would have otherwise received under community property law.

Prenup After Marriage

You can get a prenup after marriage. The legal term is “post-nup” or “postnuptial agreement.” For many people, it is the better option. There is little to no duress because the wedding has already happened.

Prenuptial Agreements in Nevada

In Nevada, prenuptial agreements are governed by the Uniform Prenuptial Agreement Act. According to the terms of the UPAA, for a prenup to be valid it must:

  • Be in writing
  • Be entered into voluntarily
  • Not place an unreasonable burden on one party at the time of execution
  • Be properly notarized

A prenuptial agreement is a complex legal document, and failing to execute it properly could impact its validity. An experienced family lawyer with knowledge of the prenup process can help you avoid potential pitfalls. Your lawyer can also ensure the document is created in a manner that matches your specific intentions and goals while protecting your legal rights.

Contact RIGHT Lawyers for Prenup Assistance in Las Vegas

If you need help in crafting a prenuptial agreement or have questions concerning the prenup process in Las Vegas, contact RIGHT Lawyers at (702) 914-0400.