This is the next post in my series on why spouses may wish to obtain a postnuptial agreement in Las Vegas, Nevada. My last article discussed when spouses may wish to use a postnuptial agreement instead of a legal separation. It is important to remember that while a legal separation is more casual than a divorce, it is still an enforceable Court Order and can be difficult to reverse. If you are not certain with your decision to separate, a postnuptial agreement may be a better option as it still offers some protections in the event of a divorce. In this article I will be writing about how to ensure your postnuptial agreement is enforceable. If you are in need of assistance then contact my office today to speak with a lawyer.
Nevada postnuptial agreements may be invalidated if the couple commingled their assets or failed to disclose all assets and debts
Postnuptial agreements require both spouses to fully disclose their assets and debts. While postnuptial agreements do not need to include who is entitled to each asset and debt, they must disclose all assets and debts at the very least. This is because if all the assets and debts are not disclosed then one spouse may be able to argue that their decision to sign the agreement was impacted. This argument is frequently successful in invalidating otherwise legitimate postnuptial agreements. Moreover, debts acquired during the marriage are divided equally in a divorce. Failing to mention significant debt is an incredibly serious omission and it is not uncommon for one spouse to challenge a postnuptial agreement due to outstanding debt.
In addition, Nevada requires that postnuptial agreements be “conscionable” and fair to both parties. This means that the contract should not clearly favor one spouse over the other. Such agreements should be fair to both parties in order to be enforceable. Further, while assets and debts can be kept separately during marriage, it is important for couples to not “commingle” marital assets with their personal ones. This is because when it comes time to distribute such property, it could pose significant difficulties. Postnuptial agreements typically specify how property should be kept separate. Thus, if a couple executes a postnuptial agreement, they should be even more aware of what is considered their own property and what is the marital property.
Each party should retain their own Nevada attorney to assist with the drafting and execution of a postnuptial agreement
Retaining independent counsel for both parties helps to ensure that a premarital agreement will be upheld by Nevada Family Courts. While having separate attorneys is not a requirement, it does help to ensure that the agreement has been drafted in good faith. Having independent counsel will help to ensure that each spouse has been given a full and fair opportunity to consider their options. If the spouses are sharing one attorney, they may not be given more personalized decision-making assistance. Moreover, a postnuptial agreement could be invalidated if it is found that one of the spouses was not given an opportunity to seek counsel. This is also the case if the spouse is found to be unable to understand the document that they were signing, or if the document attempted to cheat the spouse. Such situations could be prevented if the spouse had their own attorney.
Postnuptial agreements are essentially contracts that may dictate future spousal support, the division of property, or the execution of a future will. Depending on the assets and net worths of each spouse, they can be incredibly complicated documents. You should be aware of all of your options and the potential consequences before making such a decision. Retaining an attorney to assist you will ensure that your rights are protected. I am a Las Vegas family law lawyer who devotes her practice to the handling of domestic relations law. I am experienced in handling marriage termination matters. If you are in need of assistance then contact my office today to schedule an initial consultation.