Prenuptial agreements (a.k.a. premarital agreements in Nevada) are contracts where engaged couples agree to terms of divorce in advance of getting married. The point of prenups is to have an ironclad contract to follow in the event of divorce. But there are at least five factors that could invalidate a Nevada prenup:
- The prenup negatively affects the couple's children's right to child support.
- The prenup was unconscionable when the couple made the agreement.
- One of the spouses failed to disclose his/her property and debts.
- The prenup was not entered into voluntarily by both parties.
- The prenup eliminates or modifies spousal support to the point where the spouse is qualified for public assistance.
1. The prenup negatively affects the couple's children's right to child support.
Courts prioritize a child's well-being over the terms of any contract. Courts do not want children to become wards of the state if one or both parents have the ability to provide the child sufficient shelter, clothes, food, and access to education. If a prenup is not in the best interest of the child by severely limiting or eliminating child support, then the court may invalidate it.
2. The prenup was unconscionable when the couple made the agreement.
No court will uphold a contract that is extremely unfair or one-sided, especially if the contract favors the party that had more bargaining power to begin with. If it is clear that the terms of a prenup offend moral conscience, then a court may refuse to enforce the contract.
3. One of the spouses failed to disclose his/her property and debts.
One of the requirements when making a premarital agreement is that both parties are upfront about all their assets and liabilities. This is so that both parties have a full picture of one another's financial situation so they can make an informed decision about what to do in the event of divorce. If one of the parties did not reveal all their bank accounts, properties, valuables, debts, etc., then it may be possible to invalidate the prenup.
4. The prenup was not entered into voluntarily by both parties.
Contracts are valid only when all parties to the agreement entered into it of their own volition. Contracts can be voided if one of the parties was forced to sign under duress or if he/she had been drugged or was otherwise incapacitated.
A person may be able to prove involuntariness by such as evidence as eyewitnesses, medical records, or video footage, if any.
5. The prenup eliminates or modifies spousal support to the point where the spouse is qualified for public assistance.
If a prenup's terms concerning alimony payment leave a spouse eligible for welfare or other public assistance, then the prenup should be voidable. Although Nevada law gives couples ample discretion in deciding the financial terms of their divorce, it steps in when one of the parties is left with insufficient means to live without public benefits.
When a premarital agreement is voided, Nevada courts follow the default rules of community property, where couples have equal ownership of all assets obtained during the marriage. Learn more about our Las Vegas family law attorneys.
Sogg v. Nevada State Bank, 108 Nev. 308, 832 P.2d 781 (1992)("We have previously held premarital agreements to be enforceable unless "unconscionable, obtained through fraud, misrepresentation, material nondisclosure or duress." Buettner, 89 Nev. at 45, 505 P.2d at 604. Other jurisdictions have held such agreements to similar standards. Because of the presumed fiduciary relationship existing between parties who are engaged to be married, a presumption of fraud has been found where the agreement entered into greatly disfavors one of the parties. Bauer v. Bauer, 464 P.2d 710, 711 (Or.App. 1970); Matter of Marriage of Matson, 730 P.2d 668, 671 (Wash. 1986). This presumption may be overcome by a showing that the party claiming disadvantage was not in fact disadvantaged. Factors to consider include whether the disadvantaged party (1) had ample opportunity to obtain the advice of an independent attorney, (2) was not coerced into making a rash decision by the circumstances under which the agreement was signed, (3) had substantial business experience and business acumen, and (4) was aware of the financial resources of the other party and understood the rights that were being forfeited. See, e.g., Matson, 730 P.2d at 671.").