Marital Agreements Part One: Prenuptial Agreements

When you get married in Nevada without a prenuptial agreement, you are expressly consenting to be bound by the laws of Nevada upon a divorce. Prenuptial agreements may not be considered “romantic,” but ugly divorces are even less romantic. Approximately one-half of all marriages in the United States end in divorce. It is generally easier to address potential problems or issues before marriage rather than after marriage. If you and your spouse cannot agree on terms for a prenuptial agreement, what does that say about your prospective marriage? Moreover, prenuptial agreements do not just protect the wealthier party. A properly drafted prenuptial agreement may provide both parties protection under Nevada law. In sum, it is better to discuss and resolve the “tough issues” before marriage, rather than upon a possible divorce.

Although no prenuptial agreement can possibly address every possible issue, issues that we will discuss and for you to consider when drafting a prenuptial agreement:

Will existing property be retained as separate property or become community property?

Will appreciation of property be separate property or community property?

Will earnings or other income be considered community property after marriage?

Will there be alimony or compensation paid in the event of a divorce?

Will there be inheritance rights upon the death of either party?

Do the terms of the agreement contemplate possible changes in the law, such as tax law?

Although it is legally possible to have an enforceable prenuptial agreement with only one person having independent legal counsel, it is not advisable, and this office will not participate in the negotiation or drafting of an agreement where both parties do not have licensed, Nevada counsel. What you can do in a prenuptial agreement and what you should do, legally and morally, are different. Additionally, although theoretically a prenuptial agreement may be valid if signed the day before the marriage, we recommend beginning the process no more than 90 days before the marriage and having an agreement signed at least 30 days before the wedding. Further, considering the costs of a wedding a potential divorce, the cost of a prenuptial agreement may easily pay for itself.

Please be advised that no agreement can provide you with “iron-clad” protection, but with the proper planning, agreement and post-marital conduct, you will significantly enhance your chances of achieving your objectives for entering into a prenuptial agreement. Enclosed you will find a copy of NRS 123A, together with copies of Nevada Supreme Court cases Fick v. Fick, Sogg v. Nevada State Bank and Kantor v. Kantor. These four documents contain virtually all of the Nevada law relating to prenuptial agreements. I strongly suggest that you review these legal authorities.