TRENDS IN PREMARITAL, POSTNUPTIAL, AND SEPARATION

TRENDS IN PREMARITAL,

POSTNUPTIAL, AND

SEPARATION AGREEMENTS

Jennifer V. Abrams, Esq.

THE ABRAMS & MAYO LAW FIRM

6252 South Rainbow Blvd., Suite 100

Las Vegas, Nevada 89118

Tel: (702) 222-4021

Fax: (702) 248-9750

website: www.TheAbramsLawFirm.com

email: [email protected]

and

Marshal S. Willick, Esq.

WILLICK LAW GROUP

3591 East Bonanza Rd., Ste. 200

Las Vegas, NV 89110-2101

Tel: (702) 438-4100

Fax: (702) 438-5311

website: willicklawgroup.com

e-mail: Marshal@willicklawgroup.com

December 1, 2016

TABLE OF CONTENTS

I. MARITAL AGREEMENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. PREMARITAL AGREEMENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Nevada’s Version of the UPAA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Possible Nevada Variations as to Enforcement.. . . . . . . . . . . . . . . . . . . 6

2. “Voluntariness” in Nevada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. “Full and Fair Disclosure” in Nevada. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4. “Adequate Opportunity to Consult Counsel” in Nevada.. . . . . . . . . . . 9

5. Forum Selection Clauses in Nevada. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

6. Unconscionability in Nevada.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Proposed UPMAA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. Recent Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

E. Trends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III. POSTNUPTIAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. Unconscionability, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Distinguishing Between Postnuptial Agreements and Separation

Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

D. A Postnuptial Agreement Cannot Address Support, Contemplate

Separation or Divorce, or Fail to Include Full and Fair Disclosure

of Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

E. A Postnuptial Agreement Cannot Be a Separation Agreement.. . . . . . . . . . . 24

F. Recent Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

G. Trends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

IV. SEPARATION AGREEMENTS: WHEN THEY SURVIVE AND WHEN

THEY PERISH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

B. Why Alimony Is Treated Differently than Property in Settlement

Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

C. History of Merger vs. Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

D. Property Terms: When to Merge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

E. Alimony Provisions: When to Merge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

F. Child Support.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

G. Choice of Forum.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

H. Notable Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

I. Trends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

V. CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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PRESENTER BIOGRAPHIES

Jennifer V. Abrams

Jennifer V. Abrams is the founder and managing partner of The Abrams & Mayo Law Firm in Las

Vegas, Nevada. The firm focuses exclusively on Divorce and related matters within the practice of

Family Law.

Ms. Abrams is a State Bar of Nevada Board Certified Family Law Specialist, and a Fellow of the

American Academy of Matrimonial Lawyers. Previously she was elected to and served as Treasurer

of the Executive Council of The State Bar of Nevada, Family Law Section. She has also served on

the State of Nevada Family Law Rules of Civil Procedure Committee, State of Nevada Committee

to Re-write NRS Chapters 123 - 126, and State Bar of Nevada EDCR Rule 5 Committee.

Ms. Abrams drafted the State of Nevada Detailed Financial Disclosure Form which is currently used

in complex divorce and high-asset cases. Recently, Ms. Abrams re-wrote NRCP 16.2 and 16.205.

Ms. Abrams has spoken at and published materials for a variety of CLE presentations for the Annual

Nevada Family Law Conference Advanced Family Law Program, the American Bar Association, the

Nevada Family Law Judges’ Conference, and the Annual Nevada Family Law Conference.

Ms. Abrams is a member in good standing of the State Bar of Nevada, Clark County Bar

Association, American Bar Association, American Association for Justice (formerly the Association

of Trial Lawyers of America), and the State Bar Associations of California and Louisiana (both

inactive).

She received her Juris Doctorate degree, Magna Cum Laude, from the Pepperdine University School

of Law in California, where she graduated 9th in a class of 255 and was a staff member of the

Pepperdine Law Review for two years. Ms. Abrams received her undergraduate degree in Business

Administration, Accounting Theory and Practice, from California State University, Northridge, and

has passed the California Certified Public Accountants (CPA) examination.

The Abrams and Mayo Law Firm’s offices are located at 6252 South Rainbow Boulevard, Suite 100,

Las Vegas, NV 89118. The phone number is (702) 222-4021. E-mails may be sent to

jabrams@TheAbramsLawFirm.com. Comprehensive information about the firm’s specialty practice

can be found by visiting www.TheAbramsLawFirm.com.

Marshal S. Willick

Marshal S. Willick is the principal of the Willick Law Group, an A/V rated Family Law firm in Las

Vegas, Nevada, and practices in trial and appellate Family Law. He is a Certified Family Law

Specialist, a Fellow of both the American Academy of Matrimonial Lawyers (AAML) and the

International Academy of Family Lawyers (IAML), former Chair of the Nevada Bar Family Law

Section and former President of the Nevada chapter of the AAML. He has authored many books and

articles on Family Law and retirement benefits issues, and was managing editor of the Nevada

Family Law Practice Manual. He is frequent teacher of continuing legal education classes and is

often sought as a lecturer on family law issues.

In addition to litigating trial and appellate cases in Nevada, Mr. Willick has participated in hundreds

of divorce and pension cases in the trial and appellate courts of other states, and in the drafting of

various state and federal statutes in the areas of divorce and property division. He has chaired

several Committees of the American Bar Association Family Law Section, AAML, and Nevada Bar,

has served on many more committees, boards, and commissions of those organizations, and has been

called on to sometimes represent the entire ABA in Congressional hearings on military pension

matters. He has served as an alternate judge in various courts, and frequently testifies as an expert

witness. He serves on the Board of Directors for the Legal Aid Center of Southern Nevada.

Mr. Willick received his B.A. from the University of Nevada at Las Vegas in 1979, with honors, and

his J.D. from Georgetown University Law Center in Washington, D.C., in 1982. Before entering

private practice, he served on the Central Legal Staff of the Nevada Supreme Court for two years.

Mr. Willick can be reached at 3591 East Bonanza Rd., Ste. 200, Las Vegas, NV 89110-2101. His

phone number is (702) 438-4100, extension 103. Fax is (702) 438-5311. E-mail can be directed to

[email protected], and additional information can be obtained from the firm web sites,

www.willicklawgroup.com and http://www.qdromasters.com.

I. MARITAL AGREEMENTS

There are three basic subsets of marital agreements – premarital (also called prenuptial) agreements,

postnuptial agreements, and separation agreements. Each has unique characteristics, opportunities,

and limitations.

The obvious difference between premarital and postnuptial agreements is whether or not the parties

have married. The usual hallmarks of a legitimate premarital or postnuptial agreement are that full

and fair disclosure must be made, the parties must have an adequate opportunity to consult counsel,

and the agreement cannot be unconscionable.

As to at least premarital and postnuptial agreements, the parties share a confidential relationship, and

are generally charged with a duty to consider the interests of the other. The Nevada Supreme Court

has acknowledged that an engagement to marry creates a confidential relationship between the

parties, and both parties are generally charged with a duty to consider the interests of the other.

It could be argued that the parties to a postnuptial agreement have a greater fiduciary obligation to

one another than do fiances, since they are already in a statutorily-defined “confidential relationship”

by virtue of the marriage alone.

To date, however, there is no Nevada authority distinguishing

between the fiduciary relationships of fiances and married persons.

By contrast, a separation agreement is necessarily entered into when married parties have separated,

or are contemplating doing so, and so have acknowledged at least the potential of adverse interests.

The parties may be held to not occupy a confidential relationship, and some cases permit a finding

that the burden is on each party to discover the other party’s income and assets in preparation for

divorce.

Such an agreement connotes actual separation of the parties; authority elsewhere seems

mixed concerning the failure of parties to promptly or “immediately” separate after executing such

See 2 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS

§ 120.50 (1998); Laura W. Morgan & Brett R. Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 16.01 at

455 fn. 2 (2001).

DeLee v. Roggen, 111 Nev. 1453, 907 P.2d 168 (1995); Morgan & Turner, ATTACKING AND DEFENDING

MARITAL AGREEMENTS § 1.01 (ABA 2001).

See Rush v. Rush, 85 Nev. 623, 460 P.2d 844 (1969) (noting “confidential relations” between spouses);

Williams v. Waldman, 108 Nev. 466, 836 P.2d 614 (1992); Perry v. Jordan, 111 Nev. 943, 900 P.2d 335 (1995) (a

confidential relationship “is particularly likely to exist when there is a family relationship,” citing Kudokas v. Balkus,

26 Cal. App. 3d 744, 103 Cal. Rptr. 318, 321 (Ct. App. 1972)). In any event, there is no valid authority for the

proposition that husband and wife do not have at least equal fiduciary duties as do fiances, including those of full and

fair disclosure of all material facts.

See Applebaum v. Applebaum, 93 Nev. 382, 385, 566 P.2d 85 (1977); 1 Lindey and Parley, LINDEY AND

PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS § 13.31 (1998); Morgan & Turner, ATTACKING

AND DEFENDING MARITAL AGREEMENTS §§ 1.01, 4.03 (ABA 2001).

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an agreement, with potential effects up to treating any such agreement a “nullity” if they do not in

fact separate.

II. PREMARITAL AGREEMENTS

A. Introduction

The Uniform Premarital Agreements Act (UPAA) was completed by the Uniform Law

Commissioners

in 1983, and has been adopted, in some form, by about half the States and the

District of Columbia.

There are several variations.

As a general matter, the use of premarital agreements is increasing. According to a recent survey

of the American Academy of Matrimonial Lawyers (AAML), there has been an increase in the

number of millennials requesting prenuptial agreements, and most Academy Fellows report seeing

an increase in the total number of clients who are seeking prenups during the past three years, with

the most common basic purpose being “protection of separate property,” “alimony/spousal

maintenance,” and “division of property.”

The model UPAA is concise, with eight sections. Section 1 defines a “premarital agreement” as “an

agreement between prospective spouses made in contemplation of marriage and to be effective upon

marriage.” Section 2 requires that a premarital agreement be in writing and signed by both parties,

and is specifically enforceable without consideration.

1 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS §

12.20 at 12-4; Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 1.02 (ABA 2001).

These materials are not intended to be a comprehensive primer on Nevada’s law of premarital agreements;

for such a primer see, e.g., Robert Dickerson and Joseph Karacsonyi, Malpractice Traps When Preparing and Reviewing

Prenuptial Agreements, 27 Nev. Fam. L. Rep., Winter, 2014, at 1.

The uniform act was a product of the National Conference of Commissioners on Uniform State Laws

(“NCCUSL”), also known a the “Uniform Law Commissioners.” Now 116 years old, NCCUSL provides States with

non-partisan draft legislation intended to bring “clarity and stability” – and most especially, consistency – to various areas

of the law. Explicitly supportive of the federal system, members of NCCUSL must be lawyers, and include

lawyer-legislators, attorneys in private practice, State and federal judges, law professors, and legislative staff attorneys,

who have been appointed by State governments as well as districts and territories to research, draft, and promote

enactment of uniform State laws in areas where uniformity is desirable and practical.

See http://www.uniformlaws.org/Act.aspx?title=Premarital%20Agreement%20Act.

See, e.g., Nancy Levit, The Uniform Premarital Agreement Act and Its Variations throughout the States, 23

J. Am. Acad. Matrim. Law. 355 (2010).

See “Prenuptial Agreements on the Rise Finds Survey,” AAML press release, Oct. 28, 2016, posted at

http://aaml.org/about-the-academy/press/press-releases/prenuptial-agreements-rise-finds-survey.

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Section 3 provides an illustrative list of those matters, including spousal support, which may properly

be dealt with in a premarital agreement, specifically providing that “The right of a child to support

may not be adversely affected by a premarital agreement.”

Section 4 provides that a premarital agreement becomes effective upon the marriage of the parties.

Thus, the UPAA does not deal with agreements between persons who live together but who do not

contemplate marriage or who do not marry, and does not provide for postnuptial or separation

agreements or with oral agreements.

Section 5 prescribes the manner in which a premarital agreement may be amended or revoked (again

by a signed writing, and again without consideration being required).

Section 6 is the key operative section of the Act and sets forth the conditions under which a

premarital agreement is not enforceable; as Nevada’s enactment varies from the model, the sections

applicable here are discussed below.

The remaining sections deal with more tangential issues. Section 7 provides for very limited

enforcement where a marriage is subsequently determined to be void (“only to the extent necessary

to avoid an inequitable result”); and Section 8 tolls any statute of limitations applicable to an action

asserting a claim for relief under a premarital agreement during the parties’ marriage, while

preserving all “equitable defenses limiting the time for enforcement, including laches and estoppel.”

B. Nevada’s Version of the UPAA

Nevada adopted its version of the Uniform Premarital Agreement Act (UPAA) in 1989, codified as

NRS Chapter 123A.

The Act expressly applies to any premarital agreement executed on or after October 1, 1989, and the

enabling legislation further provided that “any premarital agreement made before that date is

enforceable it if conforms to the common law, as interpreted by the courts of this state before that

date, or the requirements of [the Act].”

Somewhat atypically, Nevada’s enactment of the “uniform” act contains three variations from the

text of the UPAA as promulgated by NCCUSL.

The first variation is not in the actual text, but in the section of the enactment bill. The language in

quotes in the first paragraph of the preceding section expanded the original proposed language,

which would have simply made the UPAA apply to all premarital agreements, whenever executed.

1989 Nev. Stat. ch. 472.

See Sogg v. Nevada State Bank, 108 Nev. 308, 312, 832 P.2d 781, 784 (1992).

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The effect was to create a two-tier review process for any premarital agreements entered prior to

October 1, 1989, since they are valid if they pass muster either under the act or under the pre-act case

law.

The second variation is in the permissible content of a premarital agreement. The model act

provided that a premarital agreement could include a contract with respect to “the modification or

elimination of spousal support.”

The Nevada enactment states that the parties may contract with

respect to “the modification or elimination of alimony or support or maintenance of a spouse.”

It is difficult to make out the purpose of the Nevada version’s expansion with certainty, except

possibly to verify the ability of the parties to contract to modify or eliminate temporary spousal

support during divorce proceedings as well as post-divorce alimony. The comments to the UPAA

are silent on this point, but there is case law from elsewhere indicating that attempted restrictions

on the power of a court to award temporary spousal support or temporary fees and allowances may

be overridden if the court determines that such an award is “necessary.”

If anything, the additional words of the Nevada enactment indicate a legislative intent to permit such

a waiver. However, there is some question as to whether any such “intent” was conscious – the

legislative history is devoid of any notice that this provision was altered from the model act. It

would appear to be a “stealth” change inserted in the original bill draft, presumably by someone in

the Legislative Counsel Bureau who prepared the bill, and the absence of any conscious

consideration of expansion of the original model language presumably will be raised if a challenge

is ever mounted to an agreement purporting to eliminate temporary spousal support. Additionally,

even if found to be intentional, whether a legislative intent to cut off the power of courts to award

temporary support and attorney’s fees would survive a public policy review remains to be seen.

The third variation of the Nevada enactment from the model act is in the movement of a single word

that alters significantly the burden of proof required to challenge enforcement of a premarital

agreement. The model act states that a premarital agreement is not enforceable if the party against

whom enforcement is sought proves that:

(1) That party did not execute the agreement voluntarily; or

(2) The agreement was unconscionable when it was executed and, before execution

of the agreement, that party:

UPAA § 3(a)(4).

NRS 123A.050(1)(d).

Fernandez v. Fernandez, 710 So. 2d 223 (Fla. Dist. Ct. App. 1998) (pendente lite support and temporary fees

constitute “support during the marriage” and may not be waived); Blanton v. Blanton, 654 So. 2d 1240 (Fla. Dist Ct.

App. 1995) (same); but see Rubin v. Rubin, 690 N.Y.S.2d 742 (App. Divorce. 1999) (specific waiver of temporary

support enforced); Musko v. Musko, 697 A.2d 266 (Pa. 1997) (parties may waive pendente lite support).

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(i) was not provided a fair and reasonable disclosure of the

property or financial obligations of the other party;

(ii) 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

(iii) did not have, or reasonably could not have had, an adequate knowledge

of the property or financial obligations of the other party.

In other words, a party seeking to challenge an agreement can make either of two arguments –

involuntariness, or both unconscionability and inadequate disclosure.

The Nevada enactment consciously altered the potential grounds for challenge. Under NRS

123A.080(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

(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.

In other words, a party seeking to challenge an agreement drafted in Nevada has three arguments –

involuntariness, or unconscionability, or inadequate disclosure. The legislative history makes it

clear that this expansion of the grounds for challenge to a premarital agreement was quite

conscious.

Commentators have noted that the provisions of the model act requiring both unconscionability and

inadequate disclosure have been “strongly criticized.”

So it is possible that the Nevada

modification on this point might be seen as a “progressive” enactment.

UPAA § 6.

NRS 123A.080.

See Remarks of Robert Gaston in Minutes of Assembly Judiciary Committee, March 30, 1989, considering

AB 296; remarks of Frank Daykin in Minutes of Senate Judiciary Committee, April 20, 1989, considering AB 296.

See Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 8.02 at 371 (ABA 2001);

Barbara Ann Atwood, Ten Years Later: Lingering Concerns about the Uniform Premarital Agreement Act, 19 J. LEGIS.

127, 146 (1993).

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1. Possible Nevada Variations as to Enforcement

The legislative history seems to anticipate that the variations from the model act would relate to

litigation of all premarital agreements in Nevada divorce cases, but other legal doctrines seem to

dictate that the Nevada variations may only apply in those cases where both the agreement and the

divorce occur in Nevada, and possibly in Nevada-executed agreements litigated elsewhere.

Under Nevada law, premarital agreements executed in another State are controlled by the law of that

State at the time of the execution of the agreement.

So if a premarital agreement was entered into

in a State that adopted the model act unchanged, and that agreement happened to be litigated in a

Nevada divorce, our case law would indicate that the other State’s enactment controls issues relating

to the validity and content of the agreement, and it seems at least an open question whether the

model act, or the Nevada provisions purporting to govern “enforcement” of premarital agreements

would control.

Put more precisely, the issue is whether a Nevada divorce court is obliged to disregard the Nevada

law governing enforcement of premarital agreements in favor of the law governing enforcement of

such agreements in the state in which the agreement was executed. Under current law the answer

would appear to be “yes,” but may be even more nuanced.

For example, Braddock looks to law as it existed at the time an agreement is executed, but other

cases applying Braddock-like reasoning have directed trial courts to use the law of the jurisdiction

in which property was acquired as of the time that divorce litigation was commenced.

So where

the law of another jurisdiction has changed over time, a Nevada divorce court might be required to

not only discover what the property characterization and division law of that other State, but also

decide whether the applicable foreign law is the law as of the execution of the agreement, or as of

the commencement of divorce proceedings, or some combination of the two.

Additionally, it is common for premarital agreements litigated in Nevada to contain choice-of-law

clauses naming other places, pointing the construction of even more premarital agreements away

from the Nevada-specific provisions enacted regarding the enforcement of such agreements, and as

noted below in discussion of recent cases, such a provision might well control.

Braddock v. Braddock, 91 Nev. 735, 542 P.2d 1060 (1975).

See generally Leflar et al., American Conflicts of Law (4th ed. 1986); Scoles & Hay, Conflict of Laws (1984).

See, e.g., Berle v. Berle, 97 Idaho 452, 546 P.2d 407 (1976) (where husband acquired “separate property”

while living in new Jersey, both the characterization and property division law of New Jersey was applied in subsequent

Idaho divorce, thus preserving wife’s interests because States define terms such as “separate property” differently;

further, trial court was instructed to “divide the marital property in accordance with the applicable New Jersey law

governing distribution of property upon divorce at the time respondent’s divorce action was commenced”). 546 P.2d

at 411.

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Given the difficulty and uncertainty involved in importation of swaths of the characterization and

property division law of other States, it is understandable why other community property

jurisdictions have chosen to enact “quasi community property” laws providing that property divided

at divorce shall include property acquired while domiciled in another State which would have been

community property if acquired while domiciled in the community property state.

Such statutes

essentially translate common-law marital property (and the attendant spousal interests) into

community property, presumably allowing forum divorce courts to make equitable property divisions

without the heightened risk of error associated in partial importation of other States’ marriage and

divorce laws. Nevada, however, has not yet elected to adopt any such provision.

2. “Voluntariness” in Nevada

“Voluntariness” is not a concept given much attention in the early case law dealing with marital

agreements. Several of the cases have no discussion much beyond the fact that the agreement was

signed.

This is in keeping with the practice in prior years, where even threats of violence were

considered “intrinsic fraud” insufficient to warrant setting aside decrees resulting from such threats

and even evidence that a party was beaten into signing a property settlement agreement was not

enough, without the allegation of other facts going to substantive unfairness, to cause such an

agreement to be set aside.

The scant Nevada case law is not specific as to how much coercion to enter into such agreement is

considered invalidating. Even the older cases indicate that under common law, a prenuptial

agreement is not enforceable if it is “unconscionable, obtained through fraud, misrepresentation,

material nondisclosure or duress.”

The case so holding, however, involved the unusual situation

of the monied spouse trying to invalidate the agreement so as not to pay the agreed term of post-

divorce alimony to the non-monied spouse whom he had decided to divorce, and the appellate court

finding no indicia in the record of any barrier to enforceability, although the Court also noted that

the agreement was executed on the day of the wedding ceremony.

See, e.g., Cal. Civ. Code §§ 4800, 4803 (West 1983); Ariz. Rev. Stat. Ann. § 25-318 (1976).

See, e.g., Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).

See Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963).

See Smith v. Smith, 102 Nev. 110, 716 P.2d 229 (1986).

Buettner v. Buettner, 89 Nev. 39, 45, 505 P.2d 600, 604 (1973).

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Similarly, the Court had seen no obvious “coercion” problem with the agreement signed the day of

the wedding ceremony that it had reviewed in Sargeant.

But 20 years later, in Sogg,

the Court

recited as a potential ground for invalidity whether “the disadvantaged party was coerced into

making rash decisions.”

The Sogg court did not lay down a hard and fast time between

presentation of the agreement to the disadvantaged party and the wedding, but cited cases in which

the agreement had been presented the day of the wedding, and the day before the wedding.

It has been suggested that, nationally, the case law is mixed, and highly fact specific, as to whether

shortness of time between presentation of the agreement and the wedding will bar enforcement.

Further, elsewhere, a threat to call off the wedding is apparently often not seen as sufficiently

coercive as to render an agreement subject to attack as “involuntarily” signed.

The holding in Sogg hardly constitutes the kind of clear line-drawing that makes the decisions of trial

courts easier, but it did mark a substantial break from the prior holdings. The case appears to move

Nevada from the camp seeing no problem with an agreement signed on the day of a wedding into

that more sensitive to the coercive pressure of signing such a document with no meaningful time for

review, and upon threat of wedding cancellation if the demand for immediate signature is not met.

The drafters of the proposed UPMAA, discussed below, noted that States are widely divergent in

how they address the concepts of voluntariness, coercion, and duress, especially as to time pressures,

and noted that “many courts” use a five-factor test that has evolved elsewhere for making such

determinations.

Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).

Sogg v. Nevada State Bank, 108 Nev. 308, 832 P.2d 781 (1992).

Sogg v. Nevada State Bank, 108 Nev. 308, 314, 832 P.2d 781, 785 (1992) (where disadvantaged party had

never completely reviewed agreement during prior meeting with a lawyer, and was not presented again with the

agreement until the morning of the wedding, which would be called off if she did not sign, coercion found to exist).

Sogg v. Nevada State Bank, 108 Nev. 308, 314, 832 P.2d 781, 785 (1992), citing Matter of Marriage of

Matson, 730 P.2d 668, 672 (Wash. 1986); Bauer v. Bauer, 464 P.2d 710, 712 (Or. App. 1970).

Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 10.02 (ABA 2001).

Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 10.053 (ABA 2001).

See, e.g., Mamot v. Mamot, 813 N.W.2d 440, 447 (Neb. 2012) (summarizing five-factor test: (1) “coercion

that may arise from the proximity of execution of the agreement to the wedding, or from surprise in the presentation of

the agreement”; (2) “the presence or absence of independent counsel or of an opportunity to consult independent

counsel”; (3) “inequality of bargaining power — in some cases indicated by the relative age and sophistication of the

parties”; (4) “whether there was full disclosure of assets”; and (5) the parties’ understanding of the “rights being waived

under the agreement or at least their awareness of the intent of the agreement”); see also In re Marriage of Bonds, 5 P.3d

815 (Cal. 2000) (superseded by statute as stated in In re Marriage of Cadwell-Faso and Faso, 191 Cal. App. 4th 945,

119 Cal. Rptr.3d 818 (Ct. App. 2011)).

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3. “Full and Fair Disclosure” in Nevada

The controlling law states the requirement as a negative. Under NRS 123A.080(1)(c), a premarital

agreement is not enforceable if the attacking party successfully proves all three of the following: did

not receive a “fair and reasonable” disclosure of the other’s property and debts; did not voluntarily

and expressly waive, in writing, any further disclosure than whatever was provided; and did not have

(or reasonably could have had) “an adequate knowledge” of the property and debts of the other.

This tri-part test formalizes the pre-UPAA common-law requirement of the duty of prospective

spouses to “make full disclosure” of assets and debts prior to executing a premarital agreement.

Presumably, a party defending a premarital agreement need only disprove one of those assertions in

order to enforce the agreement – or at least to save it from being unenforceable on that basis alone.

There is no post-UPAA Nevada authority fleshing out the meaning of the terms used (such as “fair

and reasonable”), and there is apparently a significant range of opinions on the required level of

specificity, the burden of proof on the point if contested, and the impact of partial non-disclosure.

As a practical matter, the easiest way of proving that disclosure was made and was adequate is to

attach exhibits or an appendix to the agreement itself, detailing the disclosure made. In light of the

existing Nevada case law, it might be presumed fatal to a premarital agreement to recite in the text

that such a detailed disclosure is attached, and not actually have it attached at the time of execution

of the agreement.

But anecdotal accounts suggest that even where attachments are indicated but

not attached, judges have been satisfied with an adequate showing that actual disclosure was made,

especially if disclosure beyond whatever was made was waived.

4. “Adequate Opportunity to Consult Counsel” in Nevada

There is no requirement in the UPAA or Nevada case law that each party to a premarital agreement

have independent advice of counsel prior to executing a premarital agreement. In fact, the act is

silent on the role of counsel. Rather, this “requirement” is an implication of the defense against

enforcement of a premarital agreement by a party who can prove that it was not signed

“voluntarily.”

It is not the presence or absence of counsel that is the focus, but the meaningful

opportunity to obtain information and advice, thus negativing allegations of coercion, duress, and

lack of knowledge.

NRS 123A.080(1)(c)(1)-(3).

Fick v. Fick, 109 Nev. 458, 464, 851 P.2d 445, 449-450 (1993).

See Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 11.01 (ABA 2001).

See Fick v. Fick, 109 Nev. 458, 851 P.2d 445 (1993).

NRS 123A.080(1)(a).

-9-

The pre-UPAA case law, curiously, did not include access to counsel as a consideration of

voluntariness. Rather, it was listed as a factor in determining whether the party claiming

disadvantage “was not in fact disadvantaged.”

The Court started with its prior view of the role of

counsel in divorce cases, where a party was held to documents signed only where she had “free

access to an attorney of her own choosing.”

Without identifying a specific standard of “adequacy,” the Court criticized as insufficient the

situation presented, where the husband’s attorney selected “wife’s attorney” and set up her

appointment, which took less than an hour and was incomplete (because the husband interrupted),

and the wife’s attorney refused to certify that he had independently advised her. The Court

distinguished a situation in which a prospective wife was given a proposed agreement seven or eight

months before the marriage and repeatedly advised to consult with counsel, but refused to do so.

The Court held that the agreement was procedurally defective since the wife never reviewed the

entire agreement with independent counsel.

The actual terminology used by the Court in Sogg was “ample opportunity” to consult with counsel

– language repeated the next year in Fick as one of the factors which, if proven, could overcome the

presumption of invalidity of an agreement that greatly disfavored one party to such an agreement.

As with the rest of the UPAA, there is very little authority from which a bright-line measure of

adequacy of the right to consult with counsel can be derived. It is simply impossible to know if the

Court would have been satisfied if the attorney consulting with wife had been independently chosen

by her, or if their conversation had not been interrupted by the husband, or – if interrupted – they had

managed to review the entire agreement, or if the attorney had been willing to certify that he had

advised the wife despite all else.

Given the very small number of highly fact-specific premarital agreement cases that are ever

appealed, it seems likely that such details will never be spelled out prescriptively, leaving to judges

Sogg v. Nevada State Bank, 108 Nev. 308, 312, 832 P.2d 781, 784 (1992).

See Muscelli v. Muscelli, 96 Nev. 41, 604 P.2d 1237 (1980); Applebaum v. Applebaum, 93 Nev. 382, 386,

566 P.2d 85, 88 (1977).

Sogg v. Nevada State Bank, 108 Nev. 308, 312-13, 832 P.2d 781, 784 (1992).

Sogg v. Nevada State Bank, 108 Nev. 308, 313, 832 P.2d 781, 784 (1992).

Fick v. Fick, 109 Nev. 458, 463, 851 P.2d 445, 449 (1993).

-10-

ample discretion to identify inadequate opportunity to consult counsel “when they see it,”

and

refuse to enforce the resulting premarital agreements on that ground accordingly.

5. Forum Selection Clauses in Nevada

The UPAA on its face includes “the choice of law governing the construction of the agreement” as

one of the matters as to which parties to a premarital agreement may contract.

This is reasonable;

in light of the reality with the mobility of the modern population, it is quite likely for the parties to

be from different States at formation of a premarital agreement, or to relocate from one State to

another during the marriage, by the time a premarital agreement comes to be judicially reviewed or

tested. The law used in that review could be quite different than that extant or presumed at

formation, and the validity and enforceability of the agreement could be judged in accordance with

standards and rules that did not exist at the time and place where the agreement was executed.

The Nevada Supreme Court has indicated that it will recognize – and enforce – either permissive or

mandatory forum selection clauses, and that the precise language used could be critical in

distinguishing between those two possibilities.

Long-standing case authority in Nevada provides that premarital agreements executed in another

state are controlled by the law of that state at the time of the execution of the agreement.

Given

that Nevada’s enactment of the UPAA differs in some significant respects from the act elsewhere,

practitioners would seem to have a number of additional duties and burdens.

First, when a premarital agreement executed elsewhere is litigated here, Nevada practitioners must

look for choice of law clauses. Presuming such clauses were permissible under the law where the

agreement was formed, the attorney must obtain sufficient command of the law of the other State

(personally or by association) to competently litigate the issues presented, applying the law of that

See Jacobellis v. Ohio, 378 U.S. 184 (1964) (J. Stewart, concurring) (“It is possible to read the Court’s

opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply

no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have

reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth

and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to

hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced

within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see

it, and the motion picture involved in this case is not that. [citations omitted]”).

NRS 123A.050(1)(g).

American First Fed. Credit Union v. Soro, 131 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 73, September 24,

2015).

Braddock v. Braddock, 91 Nev. 735, 542 P.2d 1060 (1975) (whether a premarital agreement was entered into

knowingly, freely, and voluntarily is a question of fact, and parties engaged to be married have a “confidential

relationship”).

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other State. As long as Braddock remains the controlling law on the subject, that duty of

investigating and applying the law of the state of premarital agreement execution probably exists

whether or not the agreement at issue contains a choice of law clause.

Second, and more subtly, practitioners drafting or negotiating premarital agreements in Nevada

should be versed in the distinction between Nevada’s statutory and case law and that present in any

other jurisdiction where the parties already have a connection, or where the agreement might end up

being litigated.

Since the Nevada enactment has a lessened burden of proof to challenge enforcement of a premarital

agreement, a party seeking to make the agreement as “bullet-proof” as possible might wish to at least

consider making the applicable law that of some other place. In contrast, a party wishing to preserve

as many claims as possible against enforcement of a premarital agreement might well want to make

the Nevada statutes the controlling law for review.

And while few people will predict everywhere they might live for the remainder of their marriage,

drafting counsel on both sides might have an obligation to at least inquire at the time of drafting of

connections by either party with other States, or of any known plans to relocate elsewhere, and

suggest in all cases that if the parties do relocate, the client might want to consult with counsel at the

new location as to the continuing validity and enforceability of the agreement.

6. Unconscionability in Nevada

Under Nevada common law, a marital agreement should be enforced and is not void as against

public policy if: its provisions are fair and reasonable; the agreement is understandable; and it was

not procured through fraud, misrepresentation, or non-disclosure.

As with all contracts, the courts

of this state retain power to refuse to enforce any marital agreement if it is unconscionable, or

obtained through fraud, misrepresentation, material non-disclosure, coercion, or duress.

A presumption of fraud is found where the agreement entered greatly disfavors one of the parties.

Once a court determines that the agreement greatly favors one party, the presumption of fraud is

established, and the burden shifts to the party attempting to enforce the agreement to show that the

other party was not disadvantaged.

Factors to be considered include:

See Buettner v. Buettner, 89 Nev. 39, 45, 505 P.2d 600, 604 (1973).

Id. (premarital agreements); Braddock v. Braddock, 91 Nev 735, 739-40, 542 P.2d 1060, 1062 (1975) (same

for postnuptial and separation agreements).

Sogg v. Nevada State Bank, 108 Nev. 308, 312, 832 P.2d 781 (1992).

Id.

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1. Ample Opportunity to obtain the advice of independent counsel;

2. Whether the disadvantaged party was coerced into making a rash decision by the

circumstances under which the agreement was signed;

3. Whether the disadvantaged party had substantial business experience and business

acumen; and

4. Whether the disadvantaged party was aware of the financial resources of the other party

and understood the rights that were being forfeited.

The term “unconscionable” is not easily or precisely defined, and the Nevada Supreme Court has

indicated that it requires a finding of both procedural and substantive unconscionability “in order for

a court to exercise its discretion to refuse to enforce a clause as unconscionable.”

Substantive unconscionability focuses on whether the terms of an agreement are “one-sided.”

Procedural unconscionability focuses on the conduct of the parties and the state that conduct put each

of them into at the time of signing the agreement, including the perceived time pressure to which a

party is subjected; Nevada is in the group of States that have decided that one party “springing” a

purported “agreement” on the other so as to provide no meaningful opportunity to have it

independently reviewed with counsel of choice is itself grounds for finding it unenforceable.

If the case involves substantial procedural unconscionability, less evidence of substantive

unconscionability is required for a court to reject a purported agreement.

There is also the question

as to whether any agreement contracted under NRS 123.070 should be closely reviewed under the

general “presumption that conveyances between persons occupying fiduciary relations are

fraudulent.”

D.R. Horton, Inc. v. Green, 120 Nev. 549, 96 P.3d 1159 (2004); see also Burch v. Second Judicial Dist. Ct.,

118 Nev. 438, 443, 650, 49 P.3d 647 (2002).

“Generally, in considering substantive unconscionability, courts look for terms that are ‘oppressive.’” Gonski

v. Second Judicial Dist. Ct., 126 Nev. 551, 245 P.3d 1164 (2010).

Sogg v. Nevada State Bank, 108 Nev. 308, 832 P.2d 781 (1992) (“In particular, circumstances which impose

time pressures on the disadvantaged party have been held to invalidate the agreement”).

D.R. Horton, supra.

Crawford v. Crawford, 24 Nev. 410, 56 Pac. 94 (1899).

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C. The Proposed UPMAA

The Uniform Premarital and Marital Agreements Act (UPMAA) was completed by the Uniform Law

Commissioners in 2012, and has been adopted as of 2016 in two States (North Dakota and

Colorado).

The model UPAA is considerably more expansive than the UPAA. It was intended to bring into

practice the conception that “parties should be free, within broad limits, to choose the financial terms

of their marriage” within “limits” of “due process in formation, on the one hand, and certain minimal

standards of substantive fairness, on the other.”

The biggest change was that it explicitly

encompassed postnuptial, as well as premarital, agreements.

The Official Comments to the UPMAA note that the act is “not intended to cover cohabitation

agreements, separation agreements, or conventional day-to-day commercial transactions between

spouses.” They specify that the key concept distinguishing postnuptial and marital separation

agreements is whether the parties intend the marriage to continue or whether “a court-decreed

separation, permanent physical separation or dissolution of the marriage is imminent or planned,”

in which case the act is inapplicable and separate considerations for a marital separation agreement

would apply. The Comments note that at least one jurisdiction, aware of the possibility of

“deception of the other party or the court regarding intentions,” refuses to enforce a marital

agreement if it is quickly followed by an action for legal separation or dissolution of the marriage.

It explicitly contains options for enacting States to consider: “Because a significant minority of states

authorizes some form of fairness review based on the parties’ circumstances at the time the

agreement is to be enforced, a bracketed provision in Section 9(f) offers the option of refusing

enforcement based on a finding of substantial hardship at the time of enforcement. And because a

few states put the burden of proof on the party seeking enforcement of marital (and, more rarely,

premarital) agreements, a Legislative Note after Section 9 suggests alternative language to reflect

that burden of proof.”

The UPMAA has not yet been taken up by the Nevada Legislature (it was briefly considered, and

then withdrawn for “further study,” in 2013).

The AAML Legislation Committee analyzed the proposed legislation in 2013, and made a number

of findings and recommendations. The Committee noted a study finding high variability among

5 8

S e e O f f i c i a l C o m m e n t s t o U P M A A , p o s t e d a t

http://www.uniformlaws.org/Act.aspx?title=Premarital%20and%20Marital%20Agreements%20Act.

See Minnesota Statutes § 519.11, subd. 1a(d) (marital agreement presumed to be unenforceable if separation

or dissolution sought within two years; in such a case, enforcement is allowed only if the spouse seeking enforcement

proves that the agreement was fair and equitable).

Id.

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States between protection of the rights of potentially vulnerable parties, on one hand, and a “highly

pro-enforcement” mindset, on the other, with a clear trend toward greater emphasis on enforceability,

but with widely disparate rules relating to procedural and substantive fairness standards from place

to place.

The AAML Committee described the UPMAA as “building upon the UPAA’s enforceability

provisions to strengthen requirements related to disclosure, review, advice, and execution of

premarital and marital agreements,” noting that under Section Nine, an agreement is unenforceable

if:

(1) the party’s consent to the agreement was involuntary or the result of duress;

(2) the party did not have access to independent legal representation under subsection (b);

(3) unless the party had independent legal representation at the time the agreement was

signed, the agreement did not include a notice of waiver of rights under subsection (c) or an

explanation in plain language of the marital rights or obligations being modified or waived

by the agreement; or

(4) before signing the agreement, the party did not receive adequate financial disclosure

under subsection (d).

The new act would add as triggers for finding an agreement to be unenforceable that the terms “were

unconscionable at the time of signing” or “enforcement ... would result in substantial hardship for

a party because of a material change in circumstances arising after the agreement was signed.” This

test for enforceability at the time of enforcement (i.e., divorce) would be a substantial departure for

Nevada law, but is part of the review process in several States.

In terms of substantive analysis, the AAML Committee noted the tension between “predictability

and uniformity,” on one hand, and proper “balance of enforcement and challenge grounds” on the

other, noting that the new act would swing the pendulum back from emphasizing enforceability to

individual determinations of fairness by “favoring” challenges to agreements.

Some of those providing feedback leading to the report were critical of the new act’s allowance of

challenges based on a “reasonable time” to locate and retain counsel, and the new emphasis on

encouraging independent legal representation. The various critics focused on the increased

“fairness” provisions as “inviting litigation,” which is the natural flip-side to the existing UPAA’s

emphasis on “enforcement.”

Given the overt hostility expressed in some quarters to the fundamental principles of the UPMAA,

it seems likely that it would be subject to significant debate if introduced in the Nevada Legislature

as a replacement of the existing UPAA.

Barbara A. Atwood & Brian Bix, A New Uniform Law for Premarital & Marital Agreements, 46 FAMILY LAW

QUARTERLY 313 (No. 3 Fall 2012).

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D. Recent Cases

Gonzales-Alpizar v. Griffith, 130 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 2, Jan. 30, 2014)

concerned the recognition to be afforded to a final divorce decree entered in Costa Rica when the

court entering that decree proceeded by default and was not informed of the existence of a valid

prenuptial agreement.

When the former wife sought to enforce the decree terms in Nevada as to child support and spousal

support under the doctrine of comity,

the Nevada courts refused on the basis that the wife had not

disclosed the premarital agreement to the Costa Rican court, and had therefore committed fraud,

making the spousal support term void.

The wife had argued that the premarital agreement was unenforceable because she did not execute

the agreement knowingly or voluntarily and because the agreement was unconscionable. The

Nevada Supreme Court, reviewing the validity of the premarital agreement de novo,

found that the

record demonstrated that the wife had signed the premarital agreement “knowingly and voluntarily”

and that she failed to demonstrate how the agreement was unconscionable.

The opinion may not be as precedential as it appears, since it concerned the relatively rare scenario

of a divorce decree entered by another country. Had the decree been instead issued by another State,

issues under the Full Faith and Credit Clause of the Constitution would have been implicated,

perhaps leading to a different result.

Jones v. Jones Jr., No. 66632, Order of Affirmance (Nevada Supreme Court, Unpublished

Disposition July 14, 2016) found a no-contest clause in a prenuptial agreement to be enforceable.

Again reviewing the validity of the prenuptial agreement de novo under NRS 123A.080(3) and Sogg.

Reiterating the expansive subject matter permitted of premarital agreements so long as they are

voluntarily executed, not in violation of public policy or a statute imposing a criminal penalty, and

not unconscionable when executed, the Court approved a “no-contest clause.” Under the agreement,

the wife received $250,000 per year in ongoing payments. The clause provided that if the wife ever

challenged the agreement, all of those sums previously paid were to be forfeited and repaid to the

The principle of courtesy by which “the courts of one jurisdiction may give effect to the laws and judicial

decisions of another jurisdiction out of deference and respect.”

Under Fick v. Fick, 109 Nev, 458, 463, 851 P.2d 445, 449 (1993); Sogg v. Nev. State Bank, 108 Nev. 308,

312, 832 P.2d 781, 783 (1992); NRS 123A.080(3).

See, e.g., Burdick v. Nicholson, 100 Nev. 284, 680 P.2d 589 (1984) (a judgment entered in one state must

be respected in another state, provided that the first state had jurisdiction over the parties and the subject matter of the

suit, even if the cause of action upon which the judgment is based would not be cognizable in the forum state, and even

if the underlying action would have been prohibited here as a matter of public policy).

-16-

husband, along with everything ever bought with those payments. The clause expressly did not

affect prospective child or spousal support.

The wife had filed an action in California attacking the premarital agreement. The Nevada Supreme

Court found no public policy concerns regarding spousal support or child-related issues to be

implicated, that it was not unconscionable when executed (finding that the wife had independent

representation, understood the agreement, and signed it “freely and voluntarily), and had twice been

“ratified” in later agreements during marriage. The Court further found that it was not “so one-sided

as to oppress her in an unconscionable manner.”

Finding further that the clause required the repayment of the previously-paid sums as a “condition

precedent” to contesting the agreement, the Court found that the wife had violated it by filing for

divorce and challenging the agreement in California without first repaying the money,

Along the way, the Court noted that though “there is a strong public policy favoring individuals

ordering and deciding their own interests through contractual arrangements,” equally strong public

policy considerations have been used to render premarital agreements partially or wholly

unenforceable.”

But it found that none of those public policy considerations were implicated here.

E. Trends

If there is a discernable trend in enforcement of premarital agreements in Nevada cases, it is apparent

only in broad strokes. Nevada can be seen as firmly in the modern mainstream of enforcement-

oriented jurisdictions, but it does have both statutory and case law moderating the harshness of

simply enforcing any agreement ever signed irrespective of its unfairness.

First, Nevada’s enactment expands the bases for finding agreements unenforceable from two to three.

Case law since enactment of the UPAA has increasingly stressed full and fair disclosure, and while

the Nevada law of voluntariness is a bit vague, it appears to align with authority that permits findings

of impermissible coercion by way of time pressure, unequal bargaining power, and surprise.

For the moment, the Nevada view of premarital agreements appears to be that agreements are to be

enforced – so long as they address permissible subject matter, and were voluntary, based on full and

fair disclosure, not in violation of public policy and not substantively and procedurally

unconscionable.

Citing Bloomfield v. Bloomfield, 764 N.E.2d 950, 952 (N.Y. 2001).

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III. POSTNUPTIAL AGREEMENTS

A. Introduction

The most singular thing about the legal framework governing postnuptial agreements in Nevada law

is that there really isn’t one. Unlike premarital agreements, which are regulated under a modern

uniform act,

there is no specific statutory scheme regulating the formation, modification, and

enforcement of postnuptial agreements. Instead, Nevada has a patchwork quilt of old statutes and

a handful of cases, from which some rules can be constructed.

The obvious difference between premarital and postnuptial agreements is whether or not the parties

have married. The hallmarks of a legitimate agreement – premarital or postnuptial – are that full and

fair disclosure must be made, the parties must have an adequate opportunity to consult counsel, and

the agreement cannot be unconscionable.

As to either premarital or postnuptial agreements, the parties share a confidential relationship, and

are generally charged with a duty to consider the interests of the other.

As detailed above, it could

be argued that the parties to a postnuptial agreement have a greater fiduciary obligation to one

another than do fiances, since they are already in a statutorily-defined “confidential relationship” by

virtue of the marriage alone, and are therefore charged with a duty to consider the interests of the

other.

Authority from elsewhere indicates that at minimum, postnuptial agreements are subject

to at least the same standards and rules of enforceability as prenuptial agreements.

During marriage, in addition to the myriad “agreements” anyone might enter into, Nevada statutory

law specifically makes available to spouses a number of potential agreements, including the ability

These materials are not intended to be a comprehensive primer on Nevada’s law of premarital agreements.

For some greater detail, see, e.g., Marshal Willick, The Risks & Rewards of Post-Nuptial Agreements in Advanced

F a m i l y L a w ( S t a t e B a r o f N e v a d a ; L a s V e g a s , N e v a d a , 2 0 0 9 ) , p o s t e d a t

http://www.willicklawgroup.com/premaritalpostnuptialseparationmarital-settlement-agreements/.

See NRS ch. 123A, the Uniform Premarital Agreement Act (“UPAA”), effective October 1, 1989. The

uniform act was promulgated by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”). An

updated, proposed replacement act, the UPMAA, which would address postnuptial agreements, has been promulgated

by NCCUSL but not yet taken up by the Nevada Legislature.

See 2 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS

§ 120.50 (1998); Laura W. Morgan & Brett R. Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 16.01 at

455 fn. 2 (2001).

Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 1.01 (ABA 2001).

See Rush v. Rush, 85 Nev. 623, 460 P.2d 844 (1969) (noting “confidential relations” between spouses);

Williams v. Waldman, 108 Nev. 466, 836 P.2d 614 (1992).

Fogg v. Fogg, 567 N.E.2d 921 (Mass. 1991).

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to exempt property acquired during marriage from becoming community property,

to allocate the

other spouse’s earnings as separate property by way of gift,

and to allocate income and resources

when a spouse has been institutionalized.

A critical inquiry is whether one party is attempting to derive a benefit for an impending divorce –

the kind of thing that might be done in a separation agreement – in the guise of a “postnuptial

agreement.” As discussed above regarding the proposed UPMAA, they are categorically different

kind of agreements, and the attempt to achieve the ends of one while purporting to be the other is

a subterfuge for which courts should be wary.

B. Unconscionability, Etc.

All of the considerations going to a review of unconscionability as to premarital agreements apply

equally to postnuptial agreements. The drafters of the UPMAA, attentive to the heightened fiduciary

duty between married persons, would have postnuptial agreements reviewed more strictly than

premarital agreements, but as discussed above, given that Nevada recognizes such a fiduciary duty

between fiances, it is uncertain whether the standard of review should be any different here.

The considerations discussed above as to voluntariness, full and fair disclosure, adequate opportunity

to consult counsel, and forum selection clauses, also would appear to apply at least equally to

postnuptial agreements.

The Nevada Supreme Court has indicated that trial courts should, if anything, give the benefit of the

doubt to the party seeking to preserve the marriage even when presented with onerous terms in an

agreement prepared by the other. In Cord,

the Court rejected any application of laches as a bar to

the wife’s suit, explaining why such a spouse is deserving of equitable considerations:

A fair reading of the record before us discloses that Virginia Cord executed the postnuptial

agreement for the sole purpose of saving her marriage. Thus, the circumstances are not

unlike those before the court in Rottman v. Rottman, 55 Cal. App. 624, 204 P. 47 (1921),

where the court in holding the wife not barred by laches wrote:

Not only is she the wife of appellant but according to the amended complaint, the

two contracts she seeks to rescind were entered into by her for the purpose of

securing to herself a continuance of the relations which she had a right to expect

from the very fact of marriage, but which her husband had threatened to deny her.

This, we repeat, places her in a position from which she may strongly combat the

NRS 123.220(1).

NRS 123.190.

NRS 123.220(4).

Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978).

-19-

charge that she unduly delayed the commencement of her action. Having made a

very foolish and improvident contract, treating the two as one, for the purpose of

securing her rights as a wife, other than the right to support, which she cast away

in order to hold to the remainder, she could hardly be expected to be zealously

diligent in attempting to cancel the contracts. A move in that direction might

imperil the very consummation she had so devoutly wished. She was justified,

without incurring the charge of guilt of laches in holding to the last possible

moment to the hope that, in the language of the amended complaint, her husband

would “live with her and love her as a husband should,” and that she might “retain

his presence with her.”

Public policy in Nevada appears to be that where a party “holds out hope until the last possible

moment,” the courts should construe all facts and documents in favor of that party.

C. Distinguishing Between Postnuptial Agreements and Separation Agreements

Agreements made between couples after marriage fall into two categories: (1) postnuptial

agreements, and (2) separation agreements.

In the case of the former, the parties intend to remain

married and living together, while in the case of the latter, the parties intend to “immediately

separate.”

The distinction is critical to legal evaluation of what can constitute a valid agreement, because real

and different consequences flow from the type of agreement the parties execute. Whether an

agreement is a postnuptial agreement or a separation agreement depends on the intention of the

parties.

Specifically, if the parties’ agreement states that the parties are living separately, but they in fact live

together thereafter, the courts of some States have held that the agreement is void.

Similarly, if at the time of execution one or both parties did not have a good-faith intention to

continue the marital relationship indefinitely, then an agreement cannot be a legitimate postnuptial

agreement, but if it was to survive at all would have to be reinterpreted as a separation agreement.

Separation agreements are also called property settlement agreements, marital settlement agreements, and

marital termination agreements.

1 Alexander Lindey and Louis I. Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND

ANTENUPTIAL CONTRACTS § 1.21[1] (1998). See, e.g., Combs v. Sherry-Combs, 865 P.2d 50, 54 (Wyo. 1993). (“A

postnuptial must be distinguished from a separation agreement. A separation agreement, entered into by parties in

anticipation of immediate separation or immediate separation or after separation, is favored in the law.”)

Auclair v. Auclair, 165 P.2d 527 (Cal. Ct. App. 1946); see also Bare v. Bare, 120 So.2d 186 (Fla. DCA

1960); Stenson v. Stenson, 359 N.E.2d 787 (Ill. Ct. App. 1977); In the Matter of Wilson, 50 N.Y.2d 59, 427 N.Y.S.2d

977, 405 N.E.2d 220 (1980).

-20-

If one party intended to separate, and the other was unsure, vacillating, or desired to continue the

marriage, a proposed “postnuptial” agreement would be presumptively unenforceable because the

concerns of the Uniform Law Commissioners as to potential “deception of the other party or the

court regarding intentions” would be greatly heightened.

D. A Postnuptial Agreement Cannot Address Support, Contemplate Separation or

Divorce, or Fail to Include Full and Fair Disclosure of Relevant Facts

NRS 123.030 permits a husband and wife to co-own property in the form of joint tenancy, tenancy

in common, or community property. A husband and wife may enter into any “contract, engagement

or transaction” with the other respecting property following their marriage, subject to the rules

governing “the actions of persons occupying relations of confidence and trust toward each other.”

The only necessary consideration is “mutual consent.”

If parties execute a postnuptial agreement, then they occupy a “confidential relationship” as in the

context of prenuptial agreements throughout the drafting and execution of the document.

Additionally, “full and fair disclosure of all relevant information” is required, both parties must have

a “meaningful opportunity to consult counsel,” and the agreement cannot be unconscionable.

NRS 123.080 permits an agreement as to property at any time, but apparently restricts any agreement

as to “support” between persons already married to situations of immediate separation, and therefore

to separation agreements, not to postnuptial agreements.

Most authorities define an award of

preliminary attorney’s fees as a species of temporary spousal support, making that off limits in a

postnuptial agreement as well.

It is true that the Nevada case law directly addresses the “easier” facts of a husband and wife

purporting to enter into a postnuptial agreement limiting one spouse’s duty of support to the other

NRS 123.070.

NRS 123.080(2).

2 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS §

120.50; Laura W. Morgan & Brett R. Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 16.01 at 455 fn.

2 (2001).

Cf. N.Y. Dom. Rel. Law § 170(6); N.C. Gen. Stat. § 52-10.1; Ohio Rev. Code § 3103.06; Okla. Stat. Ann.

tit. 32, § 6 (requiring immediate separation for agreement as whole to be valid).

Laura W. Morgan & Brett R. Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 3.05-3.06 at 50-

51, § 9.03-9.04 at 379-381 (2d ed. 2012).

-21-

where they continue to live together as husband and wife, which is expressly prohibited.

But the

authority from elsewhere makes clear that continuing cohabitation is no requirement for this bar; an

agreement purporting to terminate duties of support – or liability for attorney’s fees – between

parties who are still married is void ab initio,

the little Nevada authority that exists certainly

appears to support the same conclusion,

and if an agreement purports to be an integrated agreement,

that invalidity renders the entire agreement unenforceable.

In short, an agreement purporting to be a postnuptial agreement cannot contain any terms relating

to spousal support, because spouses may not enter into a postnuptial agreement limiting one spouse’s

duty of support to the other.

Postnuptial agreements are typically framed as contemplating indefinite continuation of a marriage,

or of reconciliation if the parties had already separated,

rather than confirming that parties had or

were about to separate, or explicitly speaking of a divorce filing or that the parties had adverse

interests. Such agreements, even if titled uncertainly, would classify as postnuptial agreements.

As noted above, most authorities conclude that a valid postnuptial agreement must have the same

disclosures required in a premarital agreement. Failure to provide, at the time of signing, at least the

disclosures and waivers that would support a premarital agreement should render a postnuptial

agreement unenforceable, for the same reasons.

See Cord v. Neuhoff, 94 Nev. 21, 24 n.3, 573 P.2d 1170, 1172 n.3 (1978); Dimick v. Dimick, 112 Nev. 402,

915 P.2d 254 (1996).

See, e.g., McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (Conn. 1980); Eule v. Eule, 320 N.E.2d 506, 24

Ill. App.3d 83 (Ill. App. Ct. 1974); Holliday v. Holliday, 358 So.2d 618 (La. 1978); Estate of Lord, 602 P.2d 1030, 93

N.M. 543 (N.M. 1979); Boyer v. Boyer, 925 P.2d 82 (Okla. Ct. App. 1996); 2 Lindey and Parley, LINDEY AND PARLEY

ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS § 110.69[4] (1999) (“the cases are clear that the parties

cannot agree to terms relieving one or the other, or both, of legal spousal support obligations during the marriage”).

Dimick v. Dimick, 112 Nev. 402, 915 P.2d 254 (1996) (prenuptial agreement provisions governing support

are “separate entirely from the order for temporary support issued by the court during the divorce proceedings”).

Cord v. Neuhoff, 94 Nev. at 24, 573 P.2d at 1172.

See Cord v. Neuhoff, 94 Nev. 21, 24 n.3, 573 P.2d 1170, 1172 n.3 (1978); Dimick v. Dimick, 112 Nev. 402,

915 P.2d 254 (1996). Cord spoke to a couple “continuing to live together as husband and wife” but it is doubtful that

either of those specifics (cohabitation or opposite-sex relations) have any importance to the holding today; if either, it

is cohabitation, but while the statute makes it clear that for a separation agreement to be valid the couple must actually

separate, the logic is less clear as to why parties to a postnuptial agreement must continue to cohabit.

Apparently, the Jones v. Jones Jr. case discussed above had exactly those facts – parties that had separated,

and then reconciled. The case law contains several such instances. See, e.g., Schwartz v. Schwartz, 126 Nev. 87, 225

P.3d 1273 (2010).

See, e.g., Sogg v. Nevada State Bank, 108 Nev. 308, 832 P.2d 781 (1992) (marital agreement unenforceable

when financial disclosures not attached to document at time of signing).

-22-

The duty of “full and fair disclosure” – one of the essential elements of any valid postnuptial

agreement

– presumably encompasses more than just financial disclosures, and includes any

information that might make the other party more or less amenable to signing the proposed

agreement.

Where, for example, a couple had separated based on sexual infidelity, and reconciled based on

reassurances of non-repetition, one party’s concealment of an ongoing affair might invalidate the

agreement, not because of the affair, per se, but because the other party might not have been willing

to undertake the financial terms of the agreement if that other party had been fully informed. This

is because that other party’s signature could be found to not have been “voluntary” under the

authority equating voluntariness with lack of coercion, and with being fully and fairly informed in

advance of signing of all relevant facts.

It is not necessary that a party actually lie to entice the other to execute such agreement, because

actionable misrepresentation may consist of a representation that is misleading because it partially

suppresses or conceals information.

An “intentional misrepresentation” requires only that the other

party made a knowingly false or misleading representation, intended to induce the other to act or

refrain, and that the other justifiably relied, and was damaged. The question of whether these

elements are satisfied is generally one of fact.

The Nevada Supreme Court has made it clear that

any required disclosures of relevant information must be made prior to execution of an agreement

if that agreement is to stand.

See 2 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS

§ 120.50 (1998); Laura W. Morgan & Brett R. Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 16.01 at

455 fn. 2 (2001).

See Sogg v. Nevada State Bank, 108 Nev. 308, 832 P.2d 781 (1992); the confidential, fiduciary relationship

includes the duty to make full disclosure of assets and debts prior to executing a premarital agreement. Fick v. Fick, 109

Nev. 458, 464, 851 P.2d 445, 449-450 (1993).

Blanchard v. Blanchard, 108 Nev. 908, 839 P.2d 1320 (1992). See also Jordan v. DMV, 121 Nev 44, 110

P.3d 30 (2005) (fraudulent misrepresentation occurs when a false representation is made with knowledge or belief that

it is false, or with an insufficient basis of information for making the representation, and with intent to induce the plaintiff

to act, and the plaintiff relies on the misrepresentation with resulting damages); Irving v. Irving, 122 Nev. 494, 134 P.3d

718 (2006) (consent to marriage, if induced by fraudulent misrepresentation, is sufficient grounds for annulment of

marriage); Barelli v. Barelli, 113 Nev. 873, 944 P.2d 246 (1997) (alleged oral agreement, if proven, would be basis for

setting aside alimony and property terms of divorce decree).

Blanchard, supra.

Fick v. Fick, 109 Nev. 458, 851 P.2d 445 (1993).

-23-

E. A Postnuptial Agreement Cannot Be a Separation Agreement

As discussed in greater detail below, a separation agreement does not have the same restrictions as

a postnuptial agreement; the parties to a separation agreement might be held to not occupy a

confidential relationship, and some authority permits a finding that the burden is on each party to

conduct discovery about the other party in preparation for divorce.

And NRS 123.080(1) provides

that a separation agreement can contain provisions for support during the separation without being

struck down on that basis.

But one party cannot be planning to immediately divorce, and attempt to get financial advantages

in that divorce in the guise of a “postnuptial agreement” stating on its face that the parties intend to

maintain the marital relationship.

As numerous courts and commentators have summarized: no court will enforce a postnuptial

agreement machinated by one spouse under the ruse of “saving the marriage” that was really

intended to cheat the other spouse out of assets in an imminent divorce. The Michigan Court in

Wright

probably expressed the thought best:

a couple that is maintaining a marital relationship may not enter into an enforceable contract

that anticipates and encourages a future separation or divorce. . . . It is not the policy of the

law to encourage such separations, or to favor them by supporting such arrangements as are

calculated to bring them about.

A party cannot convert a postnuptial agreement into a separation agreement by separating after

execution of the agreement. As noted in the discussion above of the UPMAA, at least one State

(Michigan) considers any separation or divorce filing within two years of the execution of such an

agreement to have been presumptively a tactic actually intended by one party to achieve an advantage

in divorce, rather than a bona fide postnuptial agreement, and therefore invalid. The precise facts

and circumstances of a case should dictate a court’s review, but the closer in proximity the execution

of a purported “postnuptial agreement” and an advantaged party’s filing for divorce, the more

suspect and presumptively unenforceable the agreement should be found to be.

1 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS §

13.31; Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 4.03. See Applebaum v. Applebaum,

93 Nev. 382, 385, 566 P.2d 85 (1977) (“Once Steven announced his intention to seek a divorce, Geraldine was on notice

that their interests were adverse”). There, however, the parties had married in 1968, divorced in 1972, remarried in 1973,

and in 1975, the wife moved to invalidate the property settlement in the first divorce. When the divorce court in the

second divorce refused to throw out the property settlement in the first divorce, the case went up on an appeal of the

second divorce decree. The case was, therefore, a “double-divorce” case, and its holdings might be considered limited

to its facts, although the opinion does not say so on its face.

Wright v. Wright, 761 N.W.2d 443 (Mich. App. 2008).

Wright v. Wright, 761 N.W.2d 443 (Mich. App. 2008); see also Blaising v. Mills, 374 N.E.2d 1166 (Ind. Ct.

App. 1978); Church v. Church, 630 P.2d 1243 (N.M. App. 1981).

-24-

NRS 123.080 provides in part that an agreement between married parties can only address property,

except that the parties “may agree to an immediate separation and may make provision for the

support of either of them and of their children during such separation.” So if an agreement is offered

as a separation agreement but actually speaks to other matters, it is presumptively invalid. Any such

agreement should unequivocally reflect that “a suit for divorce is pending or immediately

contemplated by one of the spouses against the other.”

The Nevada Supreme Court has repeatedly indicated its disapproval of counsel’s efforts to disguise

intent and misrepresent facts by way of “cleverly drafted” documents intended to assist in the

perpetration of a fraud.

The kind of potential “deception of the other party or the court regarding

intentions” that the drafters of the UPMAA were concerned with is present whenever a party wishes

to have a document entitled as one kind of agreement interpreted instead as something else. Any

document purporting to be a postnuptial agreement that contemplates imminent separation or

divorce, and any separation agreement that contemplates indefinite continuation of a marriage, would

both be presumptively invalid and unenforceable.

100

Any agreement submitted to a court for approval must pass muster as some kind of agreement in

order to bind the parties to the action. If it cannot fulfill the elements required of a valid premarital

agreement, or a postnuptial agreement, or a separation agreement, then it cannot stand at all, and

should be found invalid and unenforceable.

F. Recent Cases

As noted above, the Jones v. Jones, Jr. case involved both premarital and postnuptial agreements.

G. Trends

There has been relatively little appellate activity in the area of postnuptial agreements, and nothing

to indicate any recent evolution of judicial thinking on their place in family law. Of course, if some

version of the UPMAA is passed, postnuptial agreements will finally have a statutory framework for

analysis. In the meantime, such agreements are most closely analogized to premarital agreements,

as to all technical and validity requirements, and should be most closely scrutinized when they

appear to be mechanisms for financial advantage taken in contemplation of separation or divorce.

See, e.g., Vaile v. District Court, 118 Nev. 262, 44 P.3d 506 (2002) (addressing the affidavit of the residency

witness); Sierra Glass & Mirror v. Viking Industries, 107 Nev. 119, 808 P.2d 512 (1991) (addressing court filing

including only part of a deposition transcript but omitting the pertinent portion).

100

1 Lindey and Parley, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS

§ 12.20 at 12-4.

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IV. SEPARATION AGREEMENTS: WHEN THEY SURVIVE AND WHEN THEY

PERISH

A. Introduction

NRS 123.070 provides statutory authority for spouses to enter into any contract, engagement or

transaction with the each other respecting property.

NRS 123.080 provides statutory authority regulating valid contracts between spouses. It provides

for the creation and subject matter of such contracts, provides that consent is sufficient consideration

for such, and instructs how to preserve such a contract in the event of a subsequent divorce. It

permits spouses to enter into agreements respecting property as well as “the support of either of

them and of their children during such separation.”

Case law in other states expresses as public policy that the law “encourages the use of separation

agreements to settle the financial affairs of spouses who intend to divorce.”

101

This policy is based

upon the notion that “the parties are in a better position than the court to determine what is fair and

reasonable in their circumstances.”

102

As with premarital agreements, separation agreements cannot

be unconscionable, or obtained through fraud, duress, concealment or overreaching,

misrepresentation, or material non-disclosure. Absent any of the foregoing, an agreement between

the parties “is presumptively valid and binding no matter how ill-advised a party may have been in

executing it.”

103

A settlement agreement dividing property can be merged into a decree of divorce,

104

directed in a

decree of divorce to survive as an independent contract,

105

or can stand as an independent agreement

enforceable under the laws applicable to the enforcement of contracts without being referenced at

all in a decree.

106

However, when a settlement agreement contains alimony provisions, it will perish

if not merged or ordered to survive in the decree.

B. Why Alimony Is Treated Differently than Property in Settlement Agreements

101

Duffy v. Duffy, 881 A.2d 630, 633 (D.C. App. 2005) .

102

Id.

103

Id.; see also Lentz v. Lentz, 271 Mich. App. 465, 721 N.W.2d 861, 2006 Mich. App. LEXIS 2144 (2006)

104

NRS 123.080(4).

105

Ballin v. Ballin, 78 Nev. 224, 371 P2d 32 (1962).

106

Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979).

-26-

While married persons may enter into binding contracts with each other “respecting property,”

107

and

while a husband and wife may “alter their legal relations [ ] as to property,”

108

Nevada law

specifically prohibits such agreements when it comes to post-divorce alimony.

109

Specifically, NRS 123.080(1) prohibits a husband and a wife, by any contract, to alter their legal

relations “except as to property, and except that they may agree to an immediate separation and may

make provision for the support of either of them and of their children during such separation.” The

language of the statute makes it clear that the parties are prohibited from entering into any contract

that would affect “the support of either of them” past the date of divorce.

110

The reason for this prohibition is found in our statutory scheme. “Alimony is wholly a creature of

statute,” entirely unknown to either the common law or ecclesiastical law.

111

The statute, NRS

125.150, authorizes the court to award alimony to a spouse in granting a divorce.

112

There is no

other statutory authority for alimony – alimony can only exist if ordered by a court to a spouse, not

to an ex-spouse.

113

The language throughout NRS 125.150 makes it clear that an award of post-divorce alimony may

only be made by a court, and only at the time of the divorce.

114

Once ordered, only a court can

107

NRS 123.070.

108

NRS 123.080.

109

Id. (“A husband and wife cannot by any contract with each other later their legal relations except as to

property, and except that they may agree to an immediate separation and may make provision for the support of either

of them and of their children during such separation.” Emphasis added.); Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131

(1931) (The trial court is not bound by any agreement made between the parties concerning the amount of alimony to

be allowed the ex-wife.); and Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978) (The alimony provision of a postnuptial

agreement violates NRS 123.080 and is void. Because the postnuptial agreement is “integrated” and not subject to

severability, the entire agreement “must be annulled since a material part of it is illegal.”).

110

But see Kingsbury v. Kingsbury, No. 68094, Order of Affirmance (Unpublished Disposition, March 2, 2016)

(where decree of separate maintenance, which was prepared by appellant and entered by default, provided that neither

party would receive spousal support, Decree of Separate Maintenance permanently waived spousal support).

111

Rodriguez v. Rodriguez, 116 Nev. 993, 13 P.3d 415 (2000); Freeman v. Freeman, 79 Nev. 33, 378 P.2d 264

(1963).

112

NRS 125.150(1).

113

Id.

114

The language throughout NRS 125.150 consistently refers to alimony ordered by the court in the decree.

NRS 125.150(5) provides: “In the event of the death of either party or the subsequent remarriage of the spouse to whom

specified periodic payments were to be made, all the payments required by the decree must cease, unless it was otherwise

ordered by the court.” NRS 125.150(6) provides: “If the court adjudicates the property rights of the parties, or an

agreement by the parties settling their property rights has been approved by the court, whether or not the court has

retained jurisdiction to modify them, the adjudication of property rights, and the agreements settling property rights, may

-27-

modify alimony and only prospectively – there is no jurisdiction to modify alimony payments already

ordered and accrued.

115

And if alimony was not ordered in the original divorce judgment, there is

no jurisdiction to award alimony thereafter.

116

The absolute and exclusive reservation to the court of the right to award alimony is so fundamental

that in 1931, the Nevada Supreme Court held in Lewis v. Lewis

117

that the court was not bound by

any pre-decree agreements between the parties concerning the amount of alimony to be allowed the

ex-wife, and in 1978, it declared in Cord v. Neuhoff

118

that a pre-separation agreement relating to

post-decree alimony was “illegal.”

C. History of Merger vs. Survival

The meaning of the words used by courts relating to property settlement agreements in divorce

decrees has changed over the years.

In 1931, the distinction between the “approval” of an agreement on the one hand, and its “adoption

or incorporation” on the other, was recognized by the Nevada Supreme Court in Lewis v. Lewis.

119

That case indicated that the “adoption” of an agreement by the trial court resulted in a merger of the

agreement into the decree, so a later motion to modify was directed to the decree and not to the

agreement which had been merged into it.

Fifteen years later, in 1948, Finley v. Finley

120

the Court again addressed the distinction between

“approval” and “adoption” of a property settlement agreement, but came to a different decision.

Finley held that an adoption of such an agreement gave the wife, “in addition to her contractual

rights then existing, the right to invoke contempt proceedings in this state and the rights of a

judgment creditor in this or any other state.” The language “in addition to” did not indicate that the

nevertheless at any time thereafter be modified by the court upon written stipulation signed and acknowledged by the

parties to the action, and in accordance with the terms thereof.” NRS 125.150(7) provides: “If a decree of divorce, or

an agreement between the parties which was ratified, adopted or approved in a decree of divorce, provides for specified

periodic payments of alimony, the decree or agreement is not subject to modification by the court as to accrued

payments. . . .”

115

NRS 125.150(7).

116

Cavell v. Cavell, 90 Nev. 334, 526 P.2d 330 (1974); Freeman at 33.

117

53 Nev. 398, 2 P.2d 131 (1931).

118

94 Nev. 21, 573 P.2d 1170 (1978).

119

53 Nev. 398, 2 P.2d 131 (1931).

120

65 Nev. 113, 189 P.2d 334 (1948).

-28-

agreement became merged in the decree; rather, it appeared to indicate that “adoption” of an

agreement made it a part of the decree, but did not destroy its independent existence, with the result

that both contract rights and judgment rights existed. To this extent, Finley was inconsistent with

Lewis.

In 1953, NRS 123.080(4) was enacted to provide a mechanism for the parties to make their

agreements effective beyond the date of divorce by introducing their agreement into evidence as an

exhibit in any divorce action and requiring the court to, “by decree or judgment ratify or adopt or

approve the contract by reference thereto.”

In 1962, the Nevada Supreme Court held in Ballin v. Ballin

121

that a decree could direct the survival

as an independent contract of an agreement containing alimony provisions:

In our view, the support clause in an agreement should, in accordance with ordinary contract

principles, survive a subsequent decree if the parties so intended and if the court directs such

survival.

* * *

We therefore conclude that NRS 123.080(4) does not apply to a decree directing survival

of an approved agreement.

122

In the 63 years since NRS 123.080(4) was enacted by the Nevada Legislature, the Nevada Supreme

Court has reinforced the principle of merger in numerous opinions.

In Day v. Day,

123

the fundamental consideration for the court in determining whether a separation

agreement containing an alimony provision survived a validly-entered decree of divorce was whether

the decree specifically directed survival (as opposed to anything stated in the settlement agreement

itself)

124

We now take a further step and hold that the survival provision of an agreement is

ineffective unless the court decree specifically directs survival. We recognize that our view

is an arbitrary one; it has to be. However, we think that questions relating to enforcement

rights and choice of forum are of such significance as to require a clear and direct

expression from the trial court as to whether the agreement shall survive. Absent such a

clear and direct expression in the decree we shall presume that the court rejected the

contract provision for survival by using words of merger in its decree (“adopt,”

“incorporate,” etc. and, since the 1953 statute, “approve,” “adopt,” “ratify.”). Accordingly,

121

78 Nev. 224, 371 P.2d 32, at 36 (1962).

122

78 Nev. 224, 371 P.2d 32, at 36 (1962).

123

395 P.2d 321 (1964).

124

Day at 389; Rush v. Rush, 85 Nev. 623, 460 P.2d 844 (1969).

-29-

in the instant matter, we hold that the agreement was merged into the decree of divorce, and

that the provisions of such decree for the future support of Mrs. Day are susceptible to a

proceeding under NRS 125.180.

125

The holding in Day is consistent with the holdings in Rush v. Rush,

126

Watson v. Watson,

127

Wallaker

v. Wallaker,

128

and Vaile v. Porsboll,

129

all of which looked to the decree for language regarding

merger or survival.

D. Property Terms: When to Merge

In Gilbert v. Warren,

130

the parties entered into a Marital Settlement Agreement (MSA) to divide

their assets and debts. A default Decree of Divorce not referencing the MSA was entered by the

District Court – the decree neither incorporated the MSA by reference nor directed its survival.

Fifteen months later, husband sought set aside the Decree of Divorce on the basis of fraud; re-open

the matter to take additional evidence concerning the property agreement; and amend the Complaint

for Divorce to seek reformation of the contract. The district court refused to address the agreement,

and the Nevada Supreme Court affirmed:

131

In the divorce proceedings, the District Court found that there were no property rights or

debts to be adjudicated. Between the time of filing the complaint and the entry of the

125

Id.

126

82 Nev. 59, 410 P.2d 757 (1966) (Where the agreement and decree each direct survival, later controversy

regarding support must rest upon the agreement, for the rights of the parties flow from the agreement rather than from

the decree approving it).

127

95 Nev. 495, 596 P.2d 507 (1979) (Where the agreement and decree each direct survival, courts are bound

by language in the agreement which is clear and free from ambiguity and cannot, using the guise of interpretation, distort

the plain meaning of an agreement).

128

98 Nev. 26, 639 P.2d 550 (1982) (Where the decree of divorce confirmed a Property Settlement Agreement

and stated that the agreement was “not incorporated into this decree but shall survive the decree herein granted,” the

action should have been decided on principles of general contract law and although the district court could not modify

the divorce decree, respondent has cited no authority that the district court was precluded from granting reformation of

the property settlement agreement).

129

128 Nev. 27, 268 P.3d 1272 (2012) (Because the parties’ agreement was merged into the divorce decree,

to the extent that the district court purported to apply contract principles, specifically rescission, reformation, and partial

performance based on Vaile’s initial payments of $1,300 and Porsboll’s acceptance of these payments to support its

decision to set the payments at $1,300, any application of contract principles to resolve the issue of Vaile’s support

payments was improper, citing Day at 389-90.

130

95 Nev. 296, 300, 59 P.2d 696 (1979).

131

Gilbert at 300.

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divorce decree, the parties entered into a property settlement agreement. However, that

agreement was not merged into the Decree of Divorce, and therefore, was not subject to

modification by the district court in the absence of a stipulation by the parties.

In other words, the division of property in a settlement agreement not merged into the decree could

not be modified by the divorce court, because the agreement was never part of the divorce

proceedings.

132

The cases, collectively, stand for the proposition that as to division of property and debt, merged

property settlement agreements may be modified by a divorce court, and non-merged property

settlement agreements may not be modified by a divorce court.

E. Alimony Provisions: When to Merge

When considering whether or not to merge a settlement agreement containing an alimony provision

into a decree of divorce, at least one commentator has opined that the decision might determine

whether the divorce court might elect to modify alimony terms, whether or not the agreement states

that they are “non-modifiable”:

In drafting marital settlement agreements where the parties intend alimony to be non-

modifiable, it is important that the drafter contemplate the effect of merging the agreement

into the decree – including the possibility that merger may nullify the parties’ intent.

Similarly, for practitioners wishing to modify “non-modifiable” alimony, merger of the

agreement may provide the opportunity for making such a claim so long as a change in

circumstances warrants such relief.

133

Care must be taken if there is any intention to have any support provision in a separation agreement

remain valid past the date of the decree of divorce.

The decree could expressly order that alimony is to be paid – in which case the alimony is

presumably modifiable.

134

Or, a decree could expressly order the survival of a separation agreement

132

See also Rosenthal v. Rosenthal _____________, (2016) (a court is required to enforce, and may not modify,

the terms of an unmerged marital settlement agreement).

133

See Dixie Grossman, Alimony: When Nonmodifiable Terms Fail, 22 Nev. Fam. L. Rep., Summer, 2009, at

134

Some states have held that a court’s ability to modify a temporary or permanent alimony award cannot be

waived by agreement or court order. Sill v. Sill, 164 P.3d 415 (Utah 2007); Ellis v. Ellis, 962 A.2d 328 (Me. 2008);

Braun v. Greenblatt, 927 A.2d 782 (Vt. 2007); Norberg v. Norberg, 609 A.2d 1194 (N.H. 1992); Eidlin v. Eidlin, 916

P.2d 338 (Or. App. 1996); Vorfeld v. Vorfeld, 804 P.2d 891 (Hawaii App. 1991).

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providing for such support – in which case the court would presumably not have jurisdiction to

modify that alimony award.

135

Any support provisions in a separation agreement that are not merged into a decree and are not

expressly ordered to survive the decree are apparently extinguished as a matter of law upon entry of

the decree.

136

And if such a separation agreement lacks a severability clause, the entirety of the

separation agreement becomes void and unenforceable upon entry of the decree – including the

property provisions.

137

F. Child Support

It does not appear that the same application of merger vs. survival applies to child support. In

Fernandez v. Fernandez,

138

the parents stipulated to “non-modifiable” child support. Later, the

father moved to modify his child support obligation to mother, alleging significant changes in both

parents’ financial conditions which, if true, warranted such relief.

The district court held the parties to their bargain of non-modifiability, but the Supreme Court

reversed, holding that “so long as the statutory criteria for modification are met, a ‘trial court always

has the power to modify an existing child support order, either upward or downward,

notwithstanding the parties’ agreement to the contrary.’”

139

The Court reasoned that “[h]ad the Legislature wanted to give parents the option of agreeing to a

decree providing for nonmodifiable child support, it could have easily provided an exception to NRS

125B.145.” The lack of any such exception in the statute led the Court to conclude that the

jurisdiction of the court never ends in a support matter, as long as the child is eligible to receive

support.

135

Some states allow parties to waive a court’s ability to modify a temporary or permanent alimony award.

Burns v. Burns, 677 A.2d 971 (Conn. App. 1966); Bair v. Bair, 750 P.2d 994 (Kan. 1988); Toni v. Toni, 636 N.W.2d

396 (N.D. 2001); Beasley v. Beasley, 707 So. 2d 1107 (Ala. Civ. App. 1997); Rockwell v. Rockwell, 681 A.2d 1017 (Del.

Supr. 1996); Kilpatrick v. McLouth, 392 So. 2d 985 (Fla. 5th DCA 1981); Ashworth v. Busby, 526 S.E.2d 570 (Ga.

2000); Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996); Staple v. Staple, 616 N.W.2d 219 (Mich. App. 2000); Moseley v.

Mosier, 279 S.C. 348, 306 S.E.2d 624 (S.C. 1983); Nichols v. Nichols, 469 N.W.2d 619 (Wis. 1991); In re Marriage

of Ousterman, 46 Cal. App. 4th 1090, 54 Cal. Rptr.2d 403 (Ct. App. 1996).

136

Day at 389.

137

Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978) (The alimony provision of a postnuptial agreement

violates NRS 123.080 and is void. Because the postnuptial agreement is “integrated” and not subject to severability, the

entire agreement “must be annulled since a material part of it is illegal.”).

138

126 Nev. ___, 222 P.3d 1031 (Adv. Opn. No. 3, Feb. 4, 2010).

139

Id., citing In re Marriage of Alter, 171 Cal. App. 4th 718, 89 Cal. Rptr.3d 849, 852 (Ct. App. 2009).

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While the agreement for non-modifiable child support in Fernandez was in a court order, as opposed

to a non-merged contractual agreement, that fact does not appear to have made any difference in the

ruling of the Fernandez Court.

140

As one commentator noted:

Fernandez is another step in the long march toward maximizing “predictability, consistency,

and adequacy,” the intended goals of child support guidelines enacted throughout the

country in 1987. At some point, the “angels-dancing-on-the-head-of-a-pin” technicalities

of reciting magical non-merger language in a decree should and presumably will be found

to be similarly superseded by public policy considerations.

There is an attraction to the concept of holding parties to their agreements, no matter how

ill-advised, no matter what changes later, and no matter the effects on third parties. In the

context of child support, however – as in child custody – it is more appropriate for the result

to be guided by the public policy goals of protecting those who have no part in making such

agreements. The result in this case will do lots more good than harm, and was the right

call.

141

Under current law, it appears that, merger or no merger, child support orders will remain modifiable

by divorce courts with jurisdiction over the children.

G. Choice of Forum

If a separation agreement is merged into a decree of divorce, post-divorce actions for contempt,

enforcement, or modification should be filed in the Family Division. The power of courts to

construe their orders and judgments is as old as courts are old.

142

Courts have the inherent authority

to construe their prior orders, to administer their own affairs, and to perform their duties.

143

If, however, the settlement agreement survives as an independent contract, or if there are assets

omitted from the settlement agreement, choice of forum should be considered.

140

Cf. Loo v. Deets, _____ (affirming the district court’s dismissal of a contract and tort action based on issue

preclusion because the claims asserted implicated the issue of how the Loos’ marital assets should be allocated, the

identical issue that must have been litigated in the Loos’ divorce proceeding as evidenced by the language in their marital

settlement agreement, which was merged into the decree and constituted a final judgment on the merits).

141

Legal Note Vol. 18 — Fernandez & Child Support (June 8, 2010), posted at

http://www.willicklawgroup.com/vol-18-fernandez-child-support/.

142

Halverson v. Hardcastle, 123 Nev. 245, 163 P.3d 428 (2007) (a trial court has the inherent authority to

construe its orders and judgments, and to ensure they are obeyed); Reed v. Reed, 88 Nev. 329, 497 P.2d 896 (1972)

(court has inherent power to enforce its orders and judgments); In re Chartz, 29 Nev. 110, 85 P. 352 (1907) (“The power

of courts to punish for contempt and to maintain decency and dignity in their proceedings is inherent, and is as old as

courts are old”).

143

See Blackjack Bonding v. City of Las Vegas Mun. Court, 116 Nev. 1213, 14 P.3d 1275 (2000).

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“NRS 3.223 details that the family court division has original and exclusive jurisdiction over matters

affecting the familial unit including divorce, custody, marriage contracts, community and separate

property, child support, parental rights, guardianship, and adoption.”

144

It provides:

NRS 3.223 Jurisdiction of family courts

1. Except if the child involved is subject to the jurisdiction of an Indian tribe pursuant to

the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq., in each judicial district in

which it is established, the family court has original, exclusive jurisdiction in any

proceeding:

(a) Brought pursuant to title 5 of NRS or chapter 31A, 123, 125, 125A, 125B, 125C, 126,

127, 128, 129, 130, 159, 425 or 432B of NRS, except to the extent that a specific statute

authorizes the use of any other judicial or administrative procedure to facilitate the

collection of an obligation for support.

(b) Brought pursuant to NRS 442.255 and 442.2555 to request the court to issue an order

authorizing an abortion.

(d) Otherwise within the jurisdiction of the juvenile court.

(e) To establish the date of birth, place of birth or parentage of a minor.

(f) To change the name of a minor.

(g) For a judicial declaration of the sanity of a minor.

(h) To approve the withholding or withdrawal of life-sustaining procedures from a person

as authorized by law.

(i) Brought pursuant to NRS 433A.200 to 433A.330, inclusive, for an involuntary court-

ordered admission to a mental health facility.

(j) Brought pursuant to NRS 441A.510 to 441A.720, inclusive, for an involuntary court-

ordered isolation or quarantine.

2. The family court, where established and, except as otherwise provided in paragraph (m)

of subsection 1 of NRS 4.370, the justice court have concurrent jurisdiction over actions for

the issuance of a temporary or extended order for protection against domestic violence.

3. The family court, where established, and the district court have concurrent jurisdiction

over any action for damages brought pursuant to NRS 41.134 by a person who suffered

injury as the proximate result of an act that constitutes domestic violence.

In Landreth, the Court held that jurisdiction was proper in the Family Court even though the parties

were never married to one another and even though they had no children together. The fact of their

meretricious relationship wherein they acted as a familial unit was sufficient to vest jurisdiction in

the Family Court.

The Landreth Court further held that a district court judge sitting in family court has full power and

authority to dispose of cases that fall outside the scope of NRS 3.223. District court judges sitting

144

Landreth v. Malik, 127 Nev. ___, 251 P.3d 163 (2011).

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in the family court division were held to have expanded authority to hear family court disputes by

virtue of their specialized training: “Certainly, by requiring additional instruction for judges sitting

in the family court division, the Legislature intended not to limit the power and authority of the

district court judge, but rather to specify the qualification and training necessary for a district court

judge to preside in the family court division.”

145

It therefore concluded that “by enacting legislation

granting concurrent and coextensive jurisdiction to district court judges, the Legislature intended to

allow judges to hear cases in other districts, but not to allow district court judges concurrent and

coextensive jurisdiction over cases reserved to the family court.”

146

Given the potential issues in a separation agreement entered between spouses pursuant to Chapter

123 of NRS,

147

and the effect, if any, a decree of divorce or others orders from the Family Court may

have had on that separation agreement, jurisdiction appears to only be proper in the Family Division.

Furthermore, Nevada adopted a “one family, one judge” rule in NRS 3.025 (3) which provides, in

relevant part:

3.025. Chief judge in certain judicial districts: Selection; duties; assignment of certain cases

to same department of family court.

* * *

3. If a case involves a matter within the jurisdiction of the family court and:

(a) The parties to the case are also the parties in any other pending case or were the parties

in any other previously decided case assigned to a department of the family court in the

judicial district; or

(b) A child involved in the case is also involved in any other pending case or was involved

in any other previously decided case assigned to a department of the family court in the

judicial district, other than a case within the jurisdiction of the juvenile court pursuant to

title 5 of NRS, the chief judge shall assign the case to the department of the family court to

which the other case is presently assigned or, if the other case has been decided, to the

department of the family court that decided the other case, unless a different assignment is

required by another provision of NRS, a court rule or the Nevada Code of Judicial Conduct

or the chief judge determines that a different assignment is necessary because of

considerations related to the management of the caseload of the district judges within the

judicial district. If a case described in this subsection is heard initially by a master, the

recommendation, report or order of the master must be submitted to the district judge of the

department of the family court to which the case has been assigned pursuant to this

subsection for consideration and decision by that district judge.

145

Id.

146

Landreth at 170.

147

Specifically, NRS 123.080.

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It appears that any ability to choose between the general and family division in filing a breach of

contract action was eliminated in Landreth. Settlement agreements should be drafted with this in

mind. For example, if the parties own real estate or a business that they wish to continue operating

jointly, it may be advisable to simply refer to a separate and independent operating agreement or

other business contract in the separation agreement so that any disputes arising from that separate

business agreement would unquestionably be heard by a court of general jurisdiction.

H. Notable Cases

In Jones v. Jones, 86 Nev. 879, 478 P.2d 148 (1970), the parties entered into a separation agreement

in New York, where they resided.

148

The agreement provided, among other things, that if the husband failed to perform his obligation,

the wife (Edith) could, at her election, sue for breach of the contract, or seek such other remedies in

law or equity as might be available to her. The agreement also permitted either party to sue for

absolute divorce in any competent jurisdiction, to require the agreement to be offered in evidence,

and if accepted by the court incorporated by reference in the decree. It provided that notwithstanding

incorporation of the agreement into the decree, it was not to be merged in the decree but was to

survive and be enforceable as a contract binding upon the parties for all time. The agreement

provided it was to be construed in accordance with the laws of the State of New York.

Shortly after execution of the agreement, the husband moved to Nevada, sought and received a

default decree from Edith, and immediately remarried. The separation agreement was not offered

in the action nor did the Nevada court acquire personal jurisdiction over Edith. Subsequently, Edith

commenced an action in the Nevada court for breach of the New York separation agreement. The

lower court reduced the husband’s alimony payment.

The question on appeal was whether the lower court exceeded its jurisdiction in modifying the

separation agreement. The court found that New York law, under which the agreement had to be

construed, did not permit modification of a separation agreement when its enforcement as a private

contract was sought and it was not merged in a divorce decree, so long as it was not impeached or

cancelled in a manner permitted by law.

149

148

At the time, New York did not recognize no-fault divorce, and such “divorces by contract” were fairly

common.

149

Citations omitted. See also Portnoy v. Portnoy, 81 Nev. 235, 401 P.2d 249 (1965) (where the Nevada

Supreme Court held that “NRS 125.150(1) only governs the case of a domestic divorce in which the court has jurisdiction

to award alimony. Here our sole concern is with the right of a divorced wife to later obtain support when she did not

have an opportunity to litigate that right in her foreign divorce action. . . . It is now established beyond question that a

valid ex parte divorce entered at the domicile of only one party to the marriage does not automatically end the wife’s right

to support.”).

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I. Trends

No clear trend in modern cases relating to separation agreements is apparent, other than perhaps that

they are recognized, approved, and part of the modern context of resolution of divorce law. It is

important for the practitioner to know when merger will mean “modifiable,” and when merger is

irrelevant. The law of separation agreements is one more valuable tool in the toolbox of a family

law attorney.

V. CONCLUSIONS

Family law has proven to be far more dynamic in recent years than many believed it to be. Part of

that evolution has been the law of marital agreements – premarital, postnuptial, and separation,

which each have unique characteristics and limitations. The parameters of what is permissible, and

what is required, has changed over the years, and could change significantly in the future, as a matter

of both case law and proposed statutory amendments. Every family law practitioner should strive

to be fully informed of what is available, what is prohibited, what is possible, and why, for the

protection of the interests of the clients, and of counsel.

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