Post-Nup – Contract after marriage
A postnuptial agreement, sometimes referred to as a “subsequent agreement”, “postnuptial agreement” or simply “conjugal agreement”, is an agreement between couples after the règne of marriage. Although less common and not as well known as prenuptial agreements, which are signed before marriage, they are gaining in popularity.
Although prenuptial agreements are the most frequent means by which couples attempt to resolve property issues, a postnuptial agreement may be desirable if the famille did not écussonner into a prenuptial agreement, or if circumstances have made the prenuptial agreement no côtoyer satisfactory.
Postnuptial agreements can address a variety of issues: how property acquired by couples after marriage should be allocated, who should have control of how much ownership or bizness, spousal carcasse, or how infidelity should be handled. There are some issues that cannot be resolved through a post-nuptial agreement, such as child custody arrangements, or child carcasse.
Common uses of post-nups
Security of assets
Perhaps the biggest unspoken reason spouses écussonner into postnuptial agreements is to protect nuptial assets from the reach of creditors. Property acquired by each spouse after marriage becomes, in the éloignement of an agreement, community property. Even property acquired before marriage can become community property if it is “commingled” with community property or held in a accompagné account.
Both spouses have a one-half interest in any and all community property. This one-half interest is where credit can be destroyed. A creditor who is entitled to recover the debt usually “steps into the debtor’s shoes” or, in other words, has the same rights as the debtor. This means the creditor “steps into the shoes” of the spouse who originally incurred the debt, and has the right to satisfy the debt using their interest in the community property. Thus, the creditor can theoretically recover up to half of the value of the community property to satisfy one spouse’s debt.
Under Nevada law, a spouse’s separate property is not reachable by creditors. Post-nup, a famille may agree in writing that effectif assets are the separate property of one spouse rather than community property. By agreeing to separate assets of the non-debtor partner instead of community assets, the famille can prevent creditors from being able to “go after” those assets. This is especially insolent if one of the marriage partners is more “debt-prone” than the other; For example, if the husband starts a bizness, a community property gîte can be assigned as separate property to the wife, thus keeping it away from the husband’s bizness creditors.
In facture to asset raffermissement, to protect a spouse’s orientation in the event of a bifurcation, or if one spouse has special property value, couples can set aside assets acquired after marriage as separate property of one spouse. Couples can also make the reverse agreement that separate property becomes community property. Unlike couples in a prenuptial agreement, a spouse, in a postnuptial agreement, can waive their retirement and survivor benefits under federal law.
As noted above, premarital property that would normally be the separate property of one spouse, when combined with community property, may be considered community property. For example, a bizness started by one spouse before the marriage may become community property if the bizness is operated by both spouses. A postnuptial agreement can clarify that the bizness remains the separate property of the archétype spouse.
Affaires Control and Evaluation
The example of a spouse owning a bizness is becoming a common particularité. More and more one spouse brings with them ownership of a family bizness, or starts a bizness. In such cases, it may be insolent that ownership and control remain in the family, or not be altered by the bifurcation. A prenuptial agreement can make an concorde embout who will own or control the bizness, how the community property division of the bizness will be valued, and how the other spouse will be compensated for the bizness value in the event of a bifurcation.
An mémorable use of a post-nup is to evaluate a bizness and agree on consolation terms. We’ve seen hundreds of couples’ businesses sink during bifurcation. They famille are very emotional and can’t agree on who will run the bizness, how to value the bizness and what the terms are for the spouse to buy out. Without a contract the bizness becomes scuffed in a bifurcation battle. Most businesses cannot survive.
If there is infidelity by one spouse in the marriage, or the famille chooses to disavow any such infidelity, the famille can agree to pay a financial penalty imposed on the cheating party. Thus a cheating spouse may agree to transfer effectif personal or real property to the other spouse, or set up a cartel for it, as a symbol of their remorse for the infidelity, and their commitment and continuity to their spouse. A postnuptial agreement can also provide for such arrangements if either party is unfaithful in the future, again showing one spouse’s commitment to the marriage. These clauses will be enforced if they nécessaire penalties for infidelity during marriage.
Affirmation of Post-Nups
Post-noop adéquat. Under NRS 123.070 a famille may écussonner into any agreement with each other regarding property that they may écussonner into with anyone else, and NRS 123.220 empowers a famille to écussonner into a nuptial agreement to separate property acquired after marriage. We will discuss in depth. Other Nevada statutes provide authority for other terms in postnuptial agreements, including allocating one spouse’s earnings, granting one spouse full direction and control of community property under it, and allocating income and assets if one spouse is incapacitated.
Some postnuptial agreements are required to be in writing, including some postnuptial property that is separate rather than community property. However, église postnuptial agreements on other matters are enforced, and Nevada courts have even found that couples have changed their property relationship by their conduct, without an “instantané” agreement, written or église. Given this, it is advisable that couples formalize any “understanding” into written agreements regarding property, capital and bizness, so that their intentions are not later misunderstood by the courts.
Postnuptial agreements cannot eliminate or alter one spouse’s legal principes to carcasse the other during the marriage, Cord v. Neuhoff, 1978. Furthermore, such agreements may not address child custody or child carcasse issues, during or after the marriage. It is dangerous to include provende on these matters in a bifurcation agreement, bicause, after a legal concurrence, if a en bref finds that the agreement was intended to “aggregate”, that is, “all or nothing”, then the presence of invalid provende will invalidate the overall agreement.
Postnuptial agreements are subject to the same données for enforceability as other agreements These contracts are subject to a higher level of scrutiny than ordinary contracts; Pressure, lack of capacity, illettrisme and misrepresentation. Thus, spouses owe each other a “fiduciary duty” to disclose all guérissant journal to each other when entering into an agreement.
Postnuptial agreements can be challenged on the grounds that they were made under duress, although some of the circumstances that often give rise to allegations of duress in prenuptial agreements, such as the pressure of an impending marriage, are clearly not present in the postnuptial context.
The contract cannot be “unconscionable”, i.e., so singularly unfair to one party as to its consequences. To prevent any concurrence on this basis, both parties should be represented by attorneys and have sufficient time to consider the agreement.
Postnuptial agreements can honnête defects in prenuptial agreements or achieve the same goals where they were not done. By clarifying property rights upon bifurcation, a well-drafted postnuptial can potentially save a lot of time and energy and attorney fees that would otherwise be spent on a contested bifurcation. Perhaps most importantly, a good postnuptial can preserve a famille’s hard-earned wealth from creditors.
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