Postnuptial agreements are not as well-known as prenuptial agreements, but they accomplish important goals for some married couples. As the word implies, this type of agreement is a contract made by spouses during their marriage. Like a prenuptial agreement, a postnuptial agreement addresses property and finances of a married couple. Nevada recognizes the validity of these agreements, but requirements and limitations apply.
A married couple wishing to resolve potential property and financial issues in the event of divorce may decide to enter into a postnuptial agreement to allocate property rights in that situation. In the absence of an agreement, Nevada community property laws govern division of property after a divorce. A postnuptial contract can alter the property distribution that would occur under law.
Division of community property often is a divisive contested issue in a divorce proceeding. By addressing the financial and property issues in an agreement made during the marriage, the spouses can have financial security about their futures and avoid a prolonged and costly legal proceeding in the event a divorce occurs.
Spouses may decide to make a postnuptial contract if the terms of an existing prenuptial agreement no longer fit their circumstances or they wish to alter the previous agreement. A significant change in the couple’s financial situation, such as acquisition of complex assets or business interests, also may lead spouses to decide that a postnuptial agreement is desirable. In addition, protecting interests of children from prior marriages may be a reason for spouses to enter into a postnuptial contract. A couple may have other reasons for considering this type of agreement as well.
A postnuptial agreement can clarify allocation and ownership of separate property and distribution of marital property and financial assets between the spouses in the event of divorce. Valuation and control of business interests is a common subject. Often, asset protection and preservation are among the goals for both spouses.
Nevada law allows a married couple to enter into contracts relating to property. However, NRS 123.080 prohibits a marital contract from altering legal relations between spouses other than as to property.
The law provides an exception allowing spouses to agree to an immediate separation, including a provision for support of a spouse and children during separation. Under this provision, a postnuptial contract may address spousal support during separation. However, the agreement cannot provide for a waiver of alimony (spousal support) in the event of divorce. Similarly, a postnuptial agreement also cannot negate child custody and child support provisions of Nevada law, either during the marriage or after a divorce.
NRS 123.070 requires marriage contracts to be in writing, and executed and acknowledged in the same manner as a transfer of title to real estate. So, while spouses may verbally make an agreement, a postnuptial agreement is not likely to be enforceable in court unless it is in writing and properly executed.
A Nevada court will recognize the validity of a properly executed postnuptial agreement and enforce the terms, as long as the contract was executed voluntarily and does not violate any laws or public policy. As such, spouses may use a postnuptial contract to resolve issues relating to community property division in a divorce proceeding.
Based on the statutory provisions discussed above, an alimony waiver in a postnuptial agreement will not be enforced by a court, nor will provisions altering child custody and child support obligations. In some cases, including those types of provisions may invalidate the entire contract.
A postnuptial agreement certainly is not necessary for every married couple. However, it may be worth considering for couples who have a prenuptial agreement that no longer fits their circumstances, a complex financial or business situation, property and business interests that have changed considerably since they originally got married, or concerns about children from a prior marriage that need to be addressed.
If your marital property situation warrants consideration of a postnuptial agreement to clarify property ownership and business interests, a good first step is to discuss the matter with an experienced family law attorney. Your lawyer can explain how a postnuptial agreement can address your circumstances, as well as clarify the matters that a Nevada marital contract cannot address.
Your attorney can also help you prepare for a discussion with your spouse about the possibility of a postnuptial agreement. Ultimately, if both spouses decide to proceed with an agreement, each spouse should be represented by separate legal counsel to ensure that their respective rights and interests are protected and addressed.
At The Gersten Law Firm, we help clients with all types of family law matters, including prenuptial and postnuptial agreements. Attorney Joseph Gersten has the knowledge, skill, and experience to help you assess your marital property circumstances and guide you through the process of making the right determination about what is best for you and your financial situation. His goals always include ensuring that your rights and interests are fully protected, however you decide to proceed.
If you need assistance with a family law matter in Las Vegas, Henderson, or elsewhere in Clark County, call 702.857.8777 or contact us online to schedule an appointment. Your initial consultation is always free of charge.