NEVADA PRENUPITAL AGREEMENTS (PMA)
Nevada has adopted the Uniform Premarital Agreement Act NRS 123A.010 which states that a “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
It is essential in drafting prenuptial agreements to remember that the parties owe each other a fiduciary duty and a responsibility to act with good faith and fairness to the other This includes a full disclosure of finances Fick v. Fick, 109 Nev. 458, 851 P.2d 445,(Nev. 1993 .
In the case of Sogg v. Sog , 108 Nev. 308 (1992), the Court determined that the premarital agreement wa unenforceable because it left the wife with no maintenance The Court examined the following factors:
- The wife did not have the opportunity to view the document before the marriage;
- The wife did not have independent counsel to review the agreement;
- The husband failed to give the wife a full financial disclosure of his assets which were valued at approximately $20 million dollars; and
- The wife did not have sufficient business experience.
Generally, any PMA which forces one spouse to receive public assistance after divorce will be void in Nevada.
Many of these Sogg factors are now codified in NRS 123A.080, which lists the following factors in determining whether the PMA in 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.
Effect of Void Marriages
If an marriage is determined to be void (one party was already married, fraud, misrepresentation etc.) then the PMA is enforceable to the extent necessary to avoid an inequitable result.
In Nevada, a PMA cannot affect child support NRS 123A.050 Similarly, waivers of visitation and custody of children may also be unenforceable.
No-contest clauses contain penalties if someone unsuccessfully challenges the terms of a contract Nevada law allows for no contest clauses in PMAs so long as they are not unconscionable.
How I Can Help
- Drafting a PMA;
- Representing the party who is asked to sign the agreement;
- Modifying existing agreements; and
- Pursuing claims/litigating existing agreements.
It is absolutely essential that you have a skilled attorney helping you with these matters Please call me with your questions and concerns (702) 940-1234.