When Should You Consider a Prenuptial Agreement?
Nevada community property laws apply to all married couples who reside in the state, but it is possible to modify application of those laws. One way to accomplish modification is for prospective spouses to enter into a legally enforceable prenuptial agreement before marriage. Detailed Nevada statutory provisions apply to premarital agreements, which is the term used for prenups in state law. To determine whether you should consider a prenuptial agreement, it’s important to understand the laws that govern prenups.
What Is a Prenuptial Agreement — and What Can It Address?
Under NRS Chapter 123A, a premarital agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” The law also defines the term property as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.” For a prenuptial agreement to be enforceable, the law requires the agreement to be in writing and signed by both prospective spouses.
The statute contains a section detailing matters that may be addressed in a premarital agreement, including:
- The parties’ rights and obligations in any property
- Rights of the parties to buy, sell, use, encumber or control property
- Disposition of property in the event of marital dissolution, separation, death, or another event
- Modification or elimination of spousal support or alimony
- Creation of a will, trust, or other legal arrangement to implement the agreement
- Ownership rights in and disposition of proceeds of a life insurance policy
- Choice of law governing the agreement
- Any other matter not in violation of public policy or a law imposing a criminal penalty
The statute expressly states that a prenuptial agreement may not adversely affect the right of a child to support.
The law also establishes requirements for legal enforceability of a premarital agreement. Specific provisions detail circumstances under which a court may determine that a prenuptial agreement is unenforceable as a matter of law.
Who Should Consider a Prenuptial Agreement?
A prenuptial agreement is not necessary in many circumstances. However, there are situations in which one or both prospective spouses should consider a prenup to protect specific property rights or avoid assumption of property obligations. The circumstances of the two individuals determine whether considering a prenuptial agreement is advisable.
If a prospective spouse has significant assets, debts, or financial obligations, a prenuptial agreement can make certain that specific property or debt will remain the separate property or obligation of the owner. The agreement can ensure that community property laws do not apply in the event of a divorce or separation.
If one of the prospective spouses owns a business or has an ownership interest in a business, a prenuptial agreement can preserve that interest — and the business financial obligations — as separate property during the marriage. In the absence of an agreement, business income and appreciation will be subject to community property rules after the marriage. Protecting business interests is often a concern when a prospective spouse is involved in a family-owned business.
Another situation in which a prenup may be appropriate is when one or both spouses have children from a prior marriage. While a premarital agreement cannot address child support, it can address property interests or obligations existing by virtue of the previous marriage, as well as inheritance issues relating to a child from a prior marriage.
Other circumstances may also warrant consideration of a premarital agreement.
How to Navigate the Prenuptial Agreement Process
For some couples, discussion of a prenuptial agreement may be uncomfortable. For others, an honest conversation about legitimate concerns naturally arises during the relationship. As long as both parties demonstrate consideration for the other person’s concerns and needs, the process can go smoothly.
Getting help from an attorney with experience in prenuptial agreements is strongly recommended. Compliance with state law provisions is critical. A lawyer can also help you through the process and ensure that all matters that should be addressed are included in the final agreement.
Do-it-yourself premarital agreements can be disastrous for both parties. Take the time to talk through your circumstances with a knowledgeable attorney and make certain that you take the necessary steps to protect your interests, whatever they may be. Whether you are the prospective spouse with financial interests to protect, or you are marrying someone with interests that should be addressed in a premarital agreement, getting professional guidance and assistance is the best way to navigate the prenup process.
Schedule a Free Consultation With a Las Vegas Prenuptial Agreement Attorney
At The Gersten Law Firm, we help clients with all types of family law matters, including prenuptial agreements. Attorney Joseph Gersten has the knowledge, skill, and experience to help you assess your 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.