Pre-Nups & Post-Nups

When you get married, any property you acquire during the marriage (including to some extent your future income stream) is by default “community property” unless you have a contract that alters this arrangement.  The opposite of community property is separate property. If you mingle separate property with community property it becomes community property. Upon, divorce your ex is entitled to half of the community property.

The law governing pre-nups in Nevada is Nevada Revised Statute NRS 123A

“Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

      1.  Parties to a premarital agreement may contract with respect to:

      (a) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

      (b) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

      (c) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

      (d) The modification or elimination of alimony or support or maintenance of a spouse;

      (e) The making of a will, trust or other arrangement to carry out the provisions of the agreement;

      (f) The ownership rights in and disposition of the death benefit from a life insurance policy;

      (g) The choice of law governing the construction of the agreement; and

      (h) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

      2.  The right of a child to support may not be adversely affected by a premarital agreement.

 On enforcement:

NRS 123A.080  Enforcement: Generally.

      1.  A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

      (a) That party did not execute the agreement voluntarily;

      (b) The agreement was unconscionable when it was executed; or

      (c) Before execution of the agreement, that party:

             (1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

             (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

             (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

      2.  If a provision of a premarital agreement modifies or eliminates alimony or support or maintenance of a spouse, and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

      3.  An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

So basically, if your ex applies for welfare you will have to pay alimony, child support cannot be waived in a pre-nup, and if you failed to disclose any assets or income the whole agreement can be set aside. Similarly, it can be set aside if it is unsconscionable, meaning that your ex didn’t freely enter into the agreement – for instance, it was made right before the ceremony – “sign this or I won’t marry you”, using your family lawyer and not having her own lawyer, or anything that the Court decides placed her in an unfair bargaining position.

Nevada Law NRS123 also allows contracts to be made after marriage (so-called post-nups) in expectation of a separation. The law is fairly similar on these. In my case, I had a separation agreement reached through mediation and signed in front of a notary, where both parties indicated they had consulted independent counsel.

Here’s the catch, despite three motions to the court to have the agreement validated and rolled into my final decree of divorce, the judge has refused to rule on the validity of the agreement (for two years). This would have ended my whole divorce case in one hearing, instead it has dragged on for two years (my ex claims that the agreement was signed under duress despite being in front of a mediator and notary – seems pretty easy to check). I have petitioned the Nevada Commission on Judicial Discipline to complain about the lack of a ruling – they just reply that “you can appeal the final ruling”. In the interim I was hit with temporary support payments that consumed 90% of my income. There is still no final decree in my case at the time of writing.


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