Vegas Wedding? Before you hit that chapel, let’s get to work on your prenup! We’ve compiled a few tips, hacks, and resources to guide you through the process. No lawyer required!
Prenups in Nevada
In Nevada, prenups are actually called premarital agreements. A premarital agreement is a contract made by a couple who intend to marry. Nevada officially defines premarital agreement as follows: “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Prenups must be signed before you enter into the marriage. However, they don’t become effective until the marriage begins. Like many other states, Nevada has adopted the Uniform Premarital Agreement Act (UPAA). As the title suggests, this Act governs prenuptial agreements and tells you what you can and cannot put in your prenup.
Nevada Prenup Terminology
Official name for a prenup: Premarital Agreement
Non-marital property: Separate Property
Marital property: Community Property
Support: Separate Maintenance
Basics of a Nevada Prenup
Here are a few things to consider when preparing your Nevada prenup:
- You must put the agreement in writing!
- You can’t contract to anything unlawful
- Both parties need to sign (HelloPrenup recommends initialing each page!)
- It must be signed voluntarily (that means, you can’t sign under duress, deceit, intimidation, etc.)
- Notarize your signatures
- Last, but not least, you need to provide a “fair and reasonable” financial disclosure. This is very important (see your Schedule A or B financial schedule)
Fick v. Fick, 109 Nev. 458, 851 P.2d 445 (1993)
Before Bernice and Robert were wed, they entered into a prenuptial agreement. In the agreement, they both waived their right to alimony. However, when they both signed the agreement, Robert had not yet completed and attached his financial disclosure. Uh oh! A year later, Robert finally attached it to the prenup and Bernice initialed the form. When the couple later divorced, the court declared that the entire prenup was invalid based on the financial disclosure issue. Why? Apart from the inclusion of a financial disclosure being a requirement, the court felt that Bernice did not have all of the information she needed to make a fully informed decision to enter into the prenuptial agreement and waive her right to alimony. It didn’t matter that she initialed the form after the fact. Under Nevada law, the financial disclosure must be attached prior to the signing of the agreement. As a result, the prenup could not stand.
Moral of the story: Complete and attach your financial disclosure before signing!
What CAN you include in a valid Nevada prenup?
- Separate Property – In your Nevada prenup, you can specify what property should be considered separate property (non-marital).
- Community Property – Your Nevada prenup allows you to control which or how much property you want to be designated as community property (AKA marital property). For example, maybe you want certain premarital property to be considered community property (but don’t forget about the appreciation in value of the premarital property).
- Spousal Support – You can decide how you would like to handle support in the event of separation or divorce. In doing so, you can depart from the statutorily set support guidelines. You can also choose to completely forego the right to spousal support or maybe just put a cap on it. Your prenup lets you and your fiancé take control!
What CAN’T you contract to in a Nevada prenup?
- You can’t include any contractual provisions which violate Nevada public policy or laws imposing criminal penalties.
- You cannot contract away or otherwise diminish a child’s right to child support.
How far can your Nevada prenup go?
According to the Nevada Revised Statutes, 123A.050, you can include contractual provisions relating to the following issues and items:
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.
*Note on that last one…you cannot contractually limit a child’s right to child support!
Enforcement of a Nevada Prenup
We want to help you build your prenup to last. So, let’s take a peek at the Nevada Revised Statutes, 123A.080 for a few things to consider to ensure that your agreement is enforceable:
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.
(Added to NRS by 1989, 1004)
A Tale of Enforceability Issues
Sogg v. Nevada State Bank, 108 Nev. 308, 832 P.2d 781 (1992)
Paul and Vicky’s trip down the aisle was a bumpy one. Paul prepared a prenup with the help of his own attorney. Vicky was troubled by some of the provisions in the agreement. Specifically, there were provisions that required her to return jewelry that was gifted to her by Paul, in the event of divorce. Additionally, divorce would mean that Vicky would have to repay Paul for payments he made on her home. When Paul took her to speak with an attorney, within less than an hour, Paul broke up the meeting and demanded that they leave. Vicky was not able to get the advice she needed regarding the prenup. But wait, it gets worse. Paul was so upset by the attorney’s office debacle that he actually canceled the wedding. However, Vicky and Paul reconciled a few weeks later and the originally scheduled wedding was back on. Paul didn’t want to miss their honeymoon so they were in a rush to get down the aisle after the separation. There was no further discussion of the prenup until the day before the wedding when they both had to sign. Vicky signed without even fully reading the agreement. Paul told her there was no time to change anything before the wedding. He also promised that he would make revisions after the wedding. Not surprisingly, he never did.
Eight months later, the couple had already separated. Vicky sought invalidation of the prenup because she argued that she signed the agreement under duress. The court agreed. Paul interfered with Vicky’s ability to seek legal counsel and also pressured her to sign the agreement the night before the wedding while she still had concerns about the agreement. Plus, the wedding had already been canceled once before and Paul did not want to miss their honeymoon. At the end of the day, the prenup was not enforceable.
Moral of the story: Don’t wait until the last minute to sign your prenup!
Need a little light reading? Check out the Nevada statutes:
Why should you read the Nevada divorce statute?
We know, we know… it’s not exactly a thrilling prospect. But, the statute contains so much valuable information. Of specific importance is the fact that Nevada is a community property state. What does that mean? Basically, once you’re married all of the assets and debt which are acquired during the marriage are split equally between the couple. This is important because, upon divorce, in the event that there is no prenup, all of the assets and debts would be equally distributed to each spouse. If this isn’t something that you or your fiancé want, you can use your prenup to tell the court exactly how you would like your property and assets distributed.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].