This is the next post in my series on the differences between a postnuptial agreement or a divorce in Las Vegas and other Nevada areas. My last article provided an overview of topics which this series will be addressing. It also discussed the need to speak with an attorney if you and your spouse are going your separate ways. It is important that you speak with counsel as soon as possible as Nevada is a community property state. This means that, even if you are living separately, you can still be held responsible for your spouse’s choices. This article will discuss postnuptial agreements against another option which Nevada offers besides divorce – Decrees of separate maintenance or separation. If you require assistance then contact my office to speak with a family law lawyer.
Nevada spouses should understand that a Decree of separate maintenance is a court order while a postnuptial agreement is a contract
Nevada has two ways to protect your finances if you are going to live separately from your spouse but are not filing for divorce. The first is a Decree of separate maintenance while the other is a postnuptial agreement. It must be understood, however, that these instruments are very different. A Decree of separate maintenance or separation is an enforceable court order which offers the same legal protections as a divorce. It can cover all aspects of a marriage, including child custody and child support. The Decree is enforceable, and has legal effect, once the Judge signs it and it is properly entered and noticed to the other party. A postnuptial agreement, by contrast, is a contract between the parties as to how their affairs will be governed should the parties divorce. Such a contract has no legal effect until divorce proceedings begin. Furthermore, child custody or support cannot be included in a postnuptial agreement. This makes a “postnup” very different from a legal Decree.
The foregoing is best explained by way of example. Jack and Jill have a postnuptial agreement saying that all property acquired, and wages earned, from the time of the agreement are “separate.” The agreement also states that Jill will receive the marital home in the event of a divorce. The parties decide to separate, but not file for divorce. Jill will not be able to require Jack to leave the home as the postnuptial agreement has no relevance until divorce proceedings are filed and a Judge orders that the agreement be enforced. Jack, therefore, could remain in the home over Jill’s objections. Now suppose that the parties had received a Decree of separate maintenance which ordered that Jill have possession of the marital home. Under this order, Jill could require that Jack leave the property. This example is meant to show that a Decree provides many of the same protections as a divorce, while a postnuptial agreement allows a party to receive certain rights upon the commencement of divorce proceedings.
Contact a Las Vegas lawyer to discuss whether you should file for separate maintenance or draft a postnuptial agreement
If you are considering separating from your spouse then it is important that you protect your interests. Whether that protection should come from a Decree of Separation, or a postnuptial agreement, will depend on your particular circumstances. Discussing your situation with an experienced attorney can help to determine the best path forward. I am a Las Vegas family law lawyer who practices solely in the area of domestic relations law. I understand that this is a serious time in your life and my office will give your matter the attention it deserves. Contact us online or by telephone today to schedule an initial consultation.