Prenuptial Agreements – The Before Marriage Divorce Contract

A prenuptial agreement, also called a “pre-nup”, or “premarital agreement”, is an agreement made by couples planning to get married. The pre-nup governs how issues such as dividing marital assets, and alimony will be dealt with if the marriage should end in a divorce.

Without a prenuptial or post-nuptial agreement, a divorced couple’s property will be divided and any maintenance awarded in accordance with Nevada statutes and case law. Any couple looking to save themselves from the circus called, divorce court, should seriously consider a pre-nup. Such an agreement is especially important if one or both parties are on their second or subsequent marriage, if they have children from a previous marriage, or have significant personal assets which they do not want to be subject to the whims of a family court judge.

Are Prenuptial Agreements Enforceable in Divorce Court?

Yes, unless there are defects in their negotiation or content. Originally, most states would not enforce prenuptial agreements because they felt such agreements were “in derogation of marriage”, meaning the agreements work against the principle of married for life. However, in the early seventies, following other states, Nevada held prenuptial agreements to be generally enforceable in, Buettner v. Buettner, 1973. So your agreement will be enforceable if it is properly done.

Why Draft a Prenup?

The most important reason to draft a pre-nup is to save you time and money, if your marriage ends in divorce. By agreeing to terms now, when you love each other, the divorce tends to run simpler, when the bliss has worn off. With a prenuptial agreement you know how things are going to be divided. Giving you peace of mind and costing you drastically less money in divorce attorney fees.

Pre-nups are not romantic. Approaching the conversation is a buzz kill. Most couples find it difficult to discuss the ending of a marriage. You’re in love, and going to be married forever. Why would you need a divorce agreement? Because like life, divorce happens. You have less of a chance of finding your home on fire, and yet you buy home insurance. Signing a pre-nup is not dooming your marriage. Many couples feel siging a pre-nup solidifies each other’s marriage commitments.

What’s in a Prenuptial Agreement?

In 1989, Nevada adopted the Uniform Premarital Agreements Act (UPAA), which can be found in the Nevada Revised Statutes at Title 123A. Under the UPAA, parties to a prenuptial agreement are allowed to agree with regard to:

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

Separate property is the main focus of most prenuptial agreements. If you are coming into a marriage with real estate, retirement accounts, or cash, you might want to keep these assets separate from your community property. Community property is divided equally if a divorce happens. Separate property is not divided. A pre-nup often includes a waiver by both parties of any rights in property the other spouse acquired before the marriage. This is important if you who wish to preserve the assets they bring into a marriage.

Couples can also agree that property acquired by one partner after the marriage, which would ordinarily become community property, will remain the separate property of that spouse. For example, you might be halfway to earning a huge bonus, stock options, or maybe a future book deal. By agreeing these assets are to remain separate property you limit this argument in court.

A pre-nup may include language about limiting alimony (aka spousal support) in the case of a divorce. We are even seeing an increase in “fidelity clauses” being linked to spousal support. If a spouse has an affair the spousal support can be limited or increased, depending on your wishes. However, if the elimination or modification of alimony for a spouse results in that spouse needing public assistance, a court may disregard this portion of the agreement.

Two subjects of major concern to many couples contemplating marriage cannot be governed by prenuptial agreements: child custody and child support. By Nevada law, a court must decide these matters based on the standard of the best interests of the child and specific factors at the time of the decision. A premarital agreement signed before children are born would be unable to discuss the future factors. So, any private agreement between the parties on these subjects will not be binding.

When are Pre-Nups Not Enforced?

Prenuptial agreements are contracts between spouses. Like all contracts, in order to be binding, an agreement must be entered into by both parties knowingly and without any coercion, duress or fraud. Because of the closeness of the relationship between engaged persons, courts scrutinize prenuptial agreements especially closely.

First, the agreement must be entered into voluntarily. This means the agreement is not valid if one of the parties executed it under “duress,” a legal term meaning “pressure.” Agreements are often executed under some type of pressure; therefore, not every type of pressure will constitute duress.

While threats of physical violence or blackmail would clearly constitute duress, time between signing the agreement and the wedding date is the biggest culprit. Courts will void a pre-nup because the bride felt pressure to sign a pre-nup three days before the wedding. The typical cause being the emotional stress of having to cancel the wedding, and explain to hundreds of guests why the wedding was canceled. It’s not a gun to the head, but just as scary for some.

The threat of calling off the wedding is not always enough to be duress. Most courts reason that a party has a legal right to call off a wedding at any time. The courts look for other factors such as the unavailability of legal counsel for one spouse, or a one-sided agreement. For more examples of what constitutes duress, see “Voluntary Consent in Prenuptial Agreements”.

It is advisable for couples to allow plenty of time to negotiate and draft an agreement. To avoid the issue of duress being raised in the event of a divorce, couples should again allow several weeks, and even a month or so before the wedding date, for the process of negotiating and executing the agreement. Each side should also consult their own attorney.

Second, the agreement must be entered into “knowingly.” The UPAA requires that both parties be provided a “fair and reasonable disclosure” of the property and financial obligations of the other party. This means that income, real property, bank accounts, investments and all debts must be disclosed. This requirement underscores the advisability of allowing adequate time for consideration of the agreement.

The Nevada Supreme Court has held that where the husband failed to make the disclosures necessary to permit the wife to make an informed decision with respect to the premarital agreement, the agreement is invalid, Fick v. Fick, 1993. The court held that an incomplete list of the husband’s assets, given to the wife shortly before the wedding, and on the basis of which the wife signed the prenuptial agreement, did not constitute full disclosure.

Third, the agreement must be entered into without the presence of fraud. Fraud occurs when a party deliberately or negligently misleads the other party. Obviously, deliberately misstating or concealing one’s financial information would constitute fraud. However, as stated above prenuptial agreements are held to a higher degree of scrutiny than regular commercial contracts; courts require a high degree of honesty on the part of each party, called a fiduciary duty to the other party. Therefore, if the resulting agreement is excessively one-sided, courts will presume the existence of fraud, and, unless this presumption is rebutted in court, will invalidate the agreement.

In Sogg v. Nevada State Bank, the Nevada Supreme Court concluded that a premarital agreement would be presumed fraudulent where it left a wife with no resources or means of support in the event of a divorce, and where the wife probably would have received more under the community property laws of Nevada were it not for the premarital agreement.

The presumption may be overcome by a showing that the party claiming disadvantage was not in fact disadvantaged. Factors to consider include whether the disadvantaged party (1) had ample opportunity to obtain the advice of an independent attorney, (2) was not coerced into making a rash decision by circumstances, (3) had substantial business experience and acumen, and (4) was aware of the financial resources of the other party and understood the rights that were being forfeited.

The court in Sogg, held that where the premarital agreement was drafted by the husband’s attorney, the wife was never given an opportunity to obtain the assistance of her own counsel, was not given a copy of the agreement until the morning of the wedding, and the wife’s business experience was scanty. The court held that the presumption of fraud was not overcome, and the agreement was invalid.
Fair Pre-Nups

A contract is “unconscionable” if it is so one-sided as to be fundamentally unfair. In some states, a prenuptial agreement will be upheld even if it is one-sided and is a bad bargain for one of the parties, as long as it is made voluntarily and with full disclosure by each party. However, the Nevada Supreme Court doesn’t lean this way. In the Fick case, the court took into account the results of the agreement. It invalidated the agreement partly because the agreement eliminated alimony for the wife, which she would have been entitled to, and gave the wife much less community property than she would have received under community property laws. This indicates that Nevada courts will look at the substantive outcome of an agreement in determining fairness and validity.

It is apparent the reasons prenuptial agreements will be rendered unenforceable tend to overlap. In practice, facts which indicate there was not adequate disclosure by a party or which indicate the presence of duress may also be used to find fraud, unconscionably, etc. The overall lesson for couples is therefore: allow sufficient time for negotiation; have separate divorce lawyers available for both parties, disclose all assets, financial information and anything else the other party might reasonably want to know, and to attempt to treat the other spouse as fairly possible.

8 Different Ways Different States Treat Divorce

You’re thinking about divorce – maybe you need to give some thought to where you live. Divorce laws differ widely from state to state. Here are 8 examples that will show you just how different divorce laws can be.

  1. Want To Get Out Of Paying Alimony? Well, if your spouse has been unfaithful, you want to be living in Georgia. Georgia law allows adultery as a bar to paying alimony. Make your case and alimony will not be awarded.
  2. Want To Get Even? Let’s get back to that unfaithful scenario. In 7 states you can still sue a homewrecker for “alienation of affection” if another person has stolen your spouse from you. New Mexico, Illinois, Hawaii, North Carolina, Mississippi, Utah and South Dakota are where you want to be if you want to sue. In some of those states, the name is “criminal conversation”.
  3. Want A Fast Divorce? You may think that Nevada is the state for a quickie divorce. Think again. In New Hampshire you can be divorced in a single day. You both just cross the border and stay in New Hampshire – that’s taking up residence. There’s no minimum processing time or minimum residency requirement. You can “move” to New Hampshire on Wednesday and file on Thursday and be divorced.
  4. Not So Fast? Then try Vermont. In Vermont, you have to have been residents for at least a year. You must undergo a six-month separation, living apart during that time. Meet those requirements and the judge will grant the divorce. But, wait! It’s not final for another three-months!
  5. Find Fault In Idaho. If your spouse is a boozer and you’ve had enough. You can file for a fault divorce on the grounds of habitual intemperance.
  6. Murder She Wrote – Or He Wrote. If you want grounds for a fault divorce in Tennessee, you just have to show that your spouse has tried to murder you “by poison or any other means showing malice.” Yikes!
  7. She Has A Headache Or He’s Not In The Mood. And, that can be ground for a fault divorce in North Dakota where “persistent refusal to have reasonable matrimonial intercourse” lets you file for a fault divorce.
  8. Still Seeing Each Other? In Delaware, a divorcing couple can continue to live together, but they must be in separate bedrooms. However, sex is allowed if it I an effort “to achieve reconciliation”.

You can see how different divorce laws can be – and that’s one reason why you want an experienced divorce lawyer on your side. You want an expert divorce attorney who understand the laws in your state and can help you make the right decisions within those boundaries.

The Difference Between A Civil Law From That Of A Criminal Law

Civil Law

Civil law deals with the enforcement of an oral or written contract. This would only mean that a certain entity is often involved in other cases except the commission of a crime. A wrongful act wherein the other party asks for damages is also under the civil law. When we mean civil law, it does not involve any crime. Civil cases often require more work for the lawyer or attorney because they need to gather evidences from different sources.

Most of the time, civil cases involve disputes between a person or an organization. A person or an entity who claims on their legal compensation or benefit is often called a plaintiff. On the other hand, the person or organization that the plaintiff requires the damages is often called the defendant, litigants or parties. Usually, the plaintiff often requires the defendant under the rules of law to provide him the respect and legal obligations deemed to them. A defendant is often required to give the plaintiff what is due to them.

There are several types of civil law cases, and they include commercial operations, divorce and custody, personal injury and estate planning, bankruptcy, taxes, employment, corporations, workers’ compensation, and contracts. Under the rule of civil law, penalties are often given in a form of order, custody, legal rights, liable for damages, and monetary award to the aggrieved party. It is extremely seldom that the defendants are subject to imprisonment, but in some rare cases, there are imprisonments involved.

Criminal Law

Criminal law involves crime against people. It includes rape, robbery, murder, assault and kidnapping. In other way, it also includes tax evasion, burglary, larceny, smuggling, shoplifting and other forms of theft. Criminal laws also cover those who use and sell drugs, drunk drivers and other crimes against the law. The penalties given to perpetrators are often in the form of a fine and jail. Most of the cases under the criminal law are often dealt with an order to avoid further harm to society.

Under the criminal law, the person who is often accused of a certain crime is often charged with formal accusations for misdemeanor. The person accused is liable at large to the entire state or society and not to the victim alone. In this case, criminal defense attorneys just like a Utah Defense Attorney need to help their clients on their legal proceedings. After the trial and the court already made their decision that the other party is legally proven to commit the crime, then a sentence is clearly given. The sentence given can be in a form of supervision in the community, monetary penalty, imprisonment, or in some cases a combination of those penalties.