A prenuptial agreement is created before you get married and can prevent a lengthy court battle in the event of divorce or legal separation. It sets forth the terms of divorce before you ever enter the marriage. While this may sound like planning for failure, a prenuptial agreement can help prevent the conflicts that arise during a marriage leading to divorce. A prenuptial agreement can also protect assets from community property laws when one spouse dies.
If you live in Reno or Sparks, Nevada, and need help with a prenuptial agreement, call 775-323-5178 or contact us online so that we can set up your initial consultation.
Keep reading for details you should know about prenups:
- Understanding prenuptial agreements
- Why you need an attorney
- Benefits of a prenup
- Property division
- Child custody and support not included
- What makes a prenup unenforceable?
- Postnuptial agreement
Understanding Prenuptial Agreements
Although we tend to think of a prenuptial agreement as a plan for divorce, that is not its true purpose.
- A prenuptial agreement takes control of your assets out of the hands of the courts and gives you control as a couple.
- It sets aside the community property rules that would govern what happens to your property and debts should your marriage end for any reason.
- It is an important planning tool that designates what happens to property and assets in the event of death.
- It is used to set the ground rules for important financial decisions during the marriage.
- It can prevent false expectations and suspicions about a spouse’s motives during the marriage.
Why You Need an Attorney
Creating your prenuptial agreement when you are happy and looking toward your beautiful future together can mean working together without the conflict and bitterness that arise during divorce. And while that lends itself to cooperation and fairness in creating your agreement, in some cases your rose-colored glasses can lead to poor planning that is harmful to one spouse, or simply overlooking the law and what is necessary to a binding agreement.
To create an enforceable prenuptial agreement, you need the help of an experienced family law attorney. Certain requirements must be met, including full financial disclosure from each party.
Attorney Thomas C. Bradley is here to draft your prenuptial agreement so that it is done right. He will make sure that both of you understand and agree to the terms and that your agreement is legally valid. He will explain any limitations on the terms of your agreement, so that you do not encounter unwanted surprises in the unlikely event that you do separate and end the marriage in the future and so that your heirs are protected in the event of an untimely death.
Benefits of a Prenuptial Agreement
Virtually any couple can benefit from a prenuptial agreement. It puts you in control of what happens to your property and assets should you get divorced or die, instead of leaving those decisions to state law and the court system. It can prevent conflicts during the marriage by laying some ground rules and managing expectations from the outset.
Some couples can benefit more than others. A good example of when a prenuptial agreement is appropriate is when one or both spouses has significant assets prior to the marriage or expects a large inheritance. A prenuptial agreement is also beneficial if you have a child from a previous relationship.
A prenuptial agreement can:
- Protect your children’s inheritance, particularly children existing prior to the marriage
- Protect each of you from the other’s debts acquired before and during the marriage
- Protect your business and business partners from lawsuits during divorce
Additionally, a prenuptial agreement can establish some ground rules and expectations. For instance, it can define what happens when there is infidelity or another event. And while you are allowed to create almost any provisions you choose, there are some limitations. Agreements that get into details such as a maintaining a certain appearance, a schedule for household chores or sexual obligations, may be thrown out entirely. And, a prenuptial agreement cannot limit a spouse’s right to seek prosecution for crimes such as domestic violence, nor can it prevent or limit child support obligations or designate child custody.
Nevada is a community property state. The default is for spouses to have equal ownership and control over property acquired during the marriage and for each spouse to be held responsible for the debts created by both during the marriage. A prenuptial agreement can free you from the limitations of community property laws and put you in control.
In regard to property, assets and debts, a prenuptial agreement will often address:
- Rights and obligations of each spouse in separate and/or marital property
- The right of each spouse to buy, use, sell, transfer, lease or control property
- Distribution of property, assets, and debts upon death, separation, divorce or another event
- The rights of each spouse to death benefits from life insurance
A prenuptial agreement can be very specific regarding property as well, designating who will receive certain items such as jewelry or family heirlooms. And while child custody is off-limits in prenuptial agreements, pet custody can be designated.
A prenuptial agreement often includes the creation of a will or trust to carry out the terms of the agreement.
The terms of alimony and spousal support can be established in a prenuptial agreement. Nevada allows for the elimination or modification of alimony in a prenuptial agreement and will uphold the alimony provision in most cases. An exception to this rule applies if it will render the needy spouse destitute or eligible for public assistance at the time of the divorce or separation.
In such cases, the court can order alimony or support payments necessary to prevent the needy spouse from becoming eligible for public assistance.
Child Custody and Support Not Included
A prenuptial agreement cannot be used to designate child custody or eliminate child support obligations. Provisions of this type are unenforceable.
Parents will be held responsible for the financial support of their children and are not allowed to plan ahead to avoid it.
Regarding custody, parents are allowed to come to a mutual custody agreement when they part ways, but not in a prenuptial agreement. When parents cannot agree and the court must decide, the child’s best interest will be the sole consideration and the prior agreement will not be considered.
What Makes a Prenup Unenforceable?
Possibly the most important reason for hiring an attorney when creating your prenuptial agreement is to make sure that it will be legally valid and enforceable.
Couples do not always understand what is involved. For instance, an oral agreement is not enforceable. Your agreement must be in writing, and both of you must sign it of your own free will.
Both parties must make full and fair disclosure of their assets and debts. This is where an attorney is typically needed most. Get this step wrong and your agreement could be thrown out when you seek enforcement.
Although a prenuptial agreement can be used to avoid a court battle in the event of divorce or separation, it is unenforceable if:
- The spouse fighting it did not enter the agreement voluntarily
- It was an unconscionable, or fundamentally unfair, agreement when it was executed
- There was not fair and reasonable disclosure of property and financial obligations by the spouse seeking enforcement
The court will throw out a prenuptial agreement that was coerced. That can be very hard to prove, but to protect the validity of a prenuptial agreement both parties should have legal representation and plenty of time to consider the agreement. If it is signed the day before the wedding, it may be thrown out. If the spouse who is fighting it can prove that they did not have the sophistication to understand what they were agreeing to, it may be thrown out.
An unconscionable agreement it one that is unreasonably favorable to one spouse while giving little or nothing to the other. This can be subjective, and the court decides if your agreement was unconscionable.
A prenup may also be thrown out if the spouse fighting the agreement did not waive their rights to further financial disclosure in writing and did not or could not have known about the property and debts of the spouse seeking enforcement.
A postnuptial agreement is made after you are married. It is very similar to a prenuptial agreement, but in Nevada a postnuptial agreement cannot limit a spouse’s alimony obligation. That can only be done in a prenuptial agreement. Postnuptials can include property and debt division and may be used to protect a spouse’s business should divorce occur.
Circumstances in which a postnuptial agreement may be appropriate include:
- You have a prenuptial agreement, but it is no longer relevant or appropriate or has provisions which have expired and need to be revised.
- Major life changes have occurred since your marriage
- Major financial changes have occurred, such as an inheritance or substantial increase in assets
- There was an event within the relationship, such as infidelity
- You did not create a prenuptial agreement and are now entering estate planning
Contact the Law Office of Thomas C. Bradley today for more information on prenuptial agreements, postnuptial agreements and more.
Schedule Your Prenuptial Agreement Consultation Today
If you are planning to get married in Reno or Sparks, Nevada, a prenuptial agreement may be appropriate. Creating a prenuptial agreement takes time and careful consideration. To learn more about your options and your legal rights, please call The Law Office of Thomas C. Bradley at 775-323-5178 or contact us online to schedule your initial consultation.