If you don’t have a prenup, the state laws that you get divorced in decides how things happen in a divorce. For example, in Nevada most of the assets and income earned during the marriage are divided down the middle in a divorce.
If you are not okay with the standard, you can agree (or contract around) your state’s standard divorce rules.
Nevada’s Premarital Agreement Law (NRS Chapter 123A), allows couples to agree to change the standard divorce rules. But there are limitations to what can be agreed to. There are rules about what can be included, what cannot be included, and what makes a prenup unenforceable.
What Can Be Included
- Property. What stays yours, what stays theirs, and what becomes shared. It can cover things you own now and things you buy later.
- Debt. You can agree that student loans or credit card balances stay with the person who ran them up.
- A business. If you built a company, you can keep it and its future growth as your own. This protects your business partners too.
- Alimony. In Nevada you can set an amount, set a formula, put a cap on it, or waive it completely.
- Life insurance and retirement accounts. Who owns them, and who gets paid.
- Wills and trusts. You can agree to sign estate documents that match the deal. This comes up often in second marriages, when each spouse wants to protect children from an earlier relationship.
What Cannot Be Included
Child support. A prenup cannot take away a child’s right to support. You can’t waive it, cap it, or swap it for something else.
Custody and visitation. A judge decides custody based on what is best for the child at the time of the divorce. Not on what two people agreed to years before that child was born. You can write it into the agreement. The court can ignore it.
An alimony waiver that leaves someone broke. Waiving alimony is legal in Nevada, but there is a limit. If the waiver leaves your spouse poor enough to qualify for public assistance, the judge can order spousal support anyway.
What Should Not Be Included
Some terms are legal but still a bad idea. Leave out the lifestyle clauses; Unreasonable fines for cheating, Weight requirements, List of mandatory chores or tasks, or Rules about the in-laws. Judges are not interested in punishing behavior. Clauses like these can hand other side an easy argument of an unfair and controlling agreement. That argument doesn’t always stop at the one strange paragraph. It can sink the whole agreement.
Four Ways a Prenup is Unenforceable
A judge can decide if a prenup is unenforceable. Here the four main ways a prenup is voided by a judge.
Verbal Agreement – The agreement must be in writing and signed by both. Oral prenups are not enforceable. Notarized signatures on the agreement are a good practice but not legally necessary.
Last Minute – Prenup agreements signed the night before the wedding tend not to be enforceable. In one Nevada case, Sogg v. Nevada State Bank, a man handed his fiancée the paperwork the day before the wedding. The Nevada Supreme Court refused to enforce it because of how close to the wedding it was presented. Have the agreement signed weeks before the wedding, not the night before the rehearsal dinner.
No Attorney Review – Both spouses should have an attorney review the prenup. This confirms each spouse understood what they were signing. Attorneys should sign the prenup confirming they reviewed the prenup with their client.
Partial Disclosure – Nevada law requires a full disclosure of assets, debts, and income. Leave nothing out. Hiding a rental property or a tax debt is how a prenup gets tossed ten years later.
A good prenup is a piece of paper you never think about again. A bad one is an expensive fight over whether the paperwork counts at all. If you are thinking of a prenup, call Right Divorce Lawyers.
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