According to the data from the National Survey of Family Growth from the Centers for Disease Control and Prevention, up to 33% of first marriages end in either separation or divorce by the end of the first ten years. While very few anticipate a divorce or separation when they initially get married, issues can arise during the course of the marriage that may increase the likelihood of an eventual separation.
One such factor is timing. Studies show that the risk of divorce is highest within the first two years of marriage, and between five and eight years of marriage. Simply put, the “seven-year itch” stereotype may be somewhat true. Marriages that make it past ten years experience a lower divorce risk for each subsequent year of marriage; though that trend may be changing, as the divorce rate among those in their 50’s and 60’s is rapidly increasing.
While divorce rates are actually decreasing – hitting a record low in 2019 – more individuals are choosing to have prenuptial agreements when they get married. According to a poll conducted by Harris Poll, only around three percent of the 2,000 adults surveyed reported having a prenuptial agreement in 2010. In 2022, however, that number had jumped to 15 percent. Additionally, nearly 40 percent of those who had signed a prenuptial agreement were between the ages of 18 and 34, while under five percent of those aged 55 and above had signed one. This may be due to a number of factors. First, individuals between the ages of 18 and 34 likely grew up hearing the “50 percent of marriages end in divorce” trope that was prevalent in the 1990’s and early 2000’s.
Individuals between 18 and 34 are also likely going into marriages with more debt than previous generations, due to student loan debt and medical debt. Individuals in that age group may be more concerned about becoming responsible for a spouse’s premarital debt. Additionally, women between the ages of 18 and 34 are also likely going into marriages with more income and assets than women in previous generations, creating more separate property at the outset of the marriage.
Despite these factors, married couples who sign prenuptial agreements are still very much in the minority. What do you do if it looks like your marriage is headed towards a separation and you do not have a plan for a divorce? What do you do if you realize after you get married that you should have signed a prenuptial agreement?
Enter the postnuptial agreement. The postnuptial agreement is more of a modern creation. While there is a “model uniform act” to which Nevada subscribes for prenuptial agreements – see Nevada Revised Statutes, chapter 123A – there is no similar statutory guidelines for postnuptial agreements. So are they enforceable?
The short answer is yes, as long as they are not found to be unconscionable, they may be. Spouses have the right to make agreements with each other concerning assets and debts. There are, however, some unique aspects of postnuptial agreements to consider.
First, under Nevada case law, spouses have a fiduciary duty to each other. This is important, because if a spouse is either mislead about the terms of a postnuptial agreement, the terms of a postnuptial agreement are completely one-sided, or one spouse has a lot more legal or business acumen than the other and prepares a postnuptial agreement favoring themselves, these can all be found to be unenforceable.
One major difference between a prenuptial agreement and a postnuptial agreement is regarding alimony or spousal support. In a prenuptial agreement, the parties may choose to waive alimony or spousal support altogether. This could mean that a party to the prenuptial agreement is agreeing to never receive alimony from the other party, regardless of income, and it will generally be enforced unless the other spouse is forced to go on government assistance.
A postnuptial agreement cannot, however, waive a right to alimony or spousal support. Including such a provision in a postnuptial agreement can render the entire agreement unenforceable. Any waiver of future alimony must be made before marriage. Simply put, it is possible to have a postnuptial agreement prepared after marriage, but the parameters of what it may cover are more limited and construed than a prenuptial agreement.
What situations may be appropriate for a postnuptial agreement? First, a couple may need to update the terms of a prenuptial agreement based on more recent events. Sometimes this can mean modifying terms regarding income or support if one spouse unexpectedly begins to earn more than anticipated, or, as a marriage increases in length, some spouses may want to make the terms of a prenuptial agreement more generous to their spouse.
In other circumstances, spouses may want to make agreements as to how their property might be divided in the event of a divorce. Some couples come into a marriage with little to no assets, and as those assets grow, spouses may need a postnuptial agreement if they agree to divide certain assets differently than 50/50, which is the general guideline for community property in Nevada.
Some individuals choose to have postnuptial agreements prepared if they have children from a previous marriage for estate-planning and inheritance purposes. Additionally, although inherited assets are considered separate property in Nevada, they can potentially be transmuted into community assets if an individual is not careful, and sometimes in order to receive an inheritance, an individual needs a postnuptial agreement ensuring it would not be divided in a divorce. Finally, if one spouse has been financially irresponsible or incurred a large amount of debt in a marriage – for example, someone with an addiction to gambling – the other spouse may want a postnuptial agreement to avoid being responsible for that debt in the event of a divorce.
Whatever your reason, if you find yourself in a position where you believe you may need a postnuptial agreement, an experienced family law attorney can help you determine whether a postnuptial agreement is right for you.