A prenuptial agreement must be in writing. Verbal agreements are not enforceable.
I did not have an attorney represent me before I signed the prenuptial agreement. Is it valid?
Probably not. In Nevada, courts routinely hold that a party against whom enforcement of a premarital agreement is sought be represented by independent legal counsel in negotiating and executing the agreement. An agreement will be much easier to attack and invalidate if the party against whom enforcement is sought did not have independent counsel.
I did not have any idea how much he was worth when I signed the prenuptial agreement. Is it valid?
Again, probably not. In Nevada, the statute governing premarital agreements specifies that such agreement is not enforceable if you “did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.” Prudent practice tapes that prior to entering a prenuptial agreement, both parties fully disclose, in writing, all assets, debts and income to satisfy the requirements of the statute regarding disclosure of property.
I signed the prenup the day before the wedding. Is that valid?
This is a trickier question. The answer depends upon whether the agreement was voluntarily executed and whether or not the agreement is unconscionable. Certainly it is not good form to wait until the day before the wedding to execute a prenuptial agreement. If this occurs, and a party seeks to challenge enforcement of the prenuptial agreement, first, if there was not full disclosure of property, and if you are not represented by independent counsel, the agreement should be easy to attack and invalidate. Assuming you were represented by independent legal counsel, in all likelihood, your attorney witnessed you executing the agreement and executed a certificate acknowledging that you entered the agreement knowingly and voluntarily. The absence of that certificate of your independent counsel would likely make the agreement easy to attack. Finally, a prenuptial agreement can still be invalidated if it is found to be unconscionable when executed.
Based upon the language in our prenuptial agreement, I am receiving nothing upon divorce. Will the court uphold that?
Probably not, but many factors should be evaluated. There is a presumed fiduciary relationship between fiancés, so when a prenuptial agreement is so onerous as to result in such an unfavorable outcome for one of the parties, the court will scrutinize such agreement closely and may find it to be unconscionable. This will include a review of the size of the estate of the party seeking to enforce the prenuptial agreement, the length of the marriage, and other common sense factors. Notably, Nevada statute governing premarital agreements prohibits enforcement of portions of an agreement which would leave one’s ex-spouse eligible for public assistance.