What issues can be covered in a premarital agreement?
As we have stated in some of the prior blog posts on this subject, the requirements of premarital agreements are not necessarily as straightforward as the ones found in arm’s length contracts generally made between parties under the law.
This is because of the fiduciary relationship embedded within our society’s legal construct of husband and wife. Other than the parent-child relationship, it is the most hallowed fiduciary relationship available under the law and this guides the ways in which agreements can be formed and the terms they may include.
What's not enforcable?
As such, there are a number of topics and terms which may pertain to a marriage but, under the law, may not be included as enforceable terms in a premarital agreement.
Premarital agreements may not make any contractual agreements related to the custody of minor children from the marriage, even if the parties are in agreement regarding such terms.
Premarital agreements also cannot cover day-to-day or household responsibilities between the parties such as who cleans and cooks and who takes out the trash. The State has concluded that it is it not in the business of micromanaging relations between spouses and families on the basis and there is thus no legal enforceability behind any potential terms along these lines.
In addition, premarital agreements cannot include a child support waiver from either party to the other nor can child support be negatively affected in any way as a result of a premarital agreement between the parties. Even if the parties were to agree on such terms, they would not be found valid in a court of law.
What would be enforcable?
On the contrary, premarital agreements in Nevada may limit or waive the right to spousal support. This is a fairly common provision found in premarital agreements and gives parties the ability to contract around the issue of spousal support in a way that may be agreeable to both of them. For instance, parties may agree to a “ceiling” or limitation on spousal support or agree to a lump-sum buyout of spousal support depending on the length of their marriage.
That said, the right to contract on the issue of spousal support is not unlimited: NRS 123A.080 subsection 1 makes clear that if eliminating or limiting spousal support in a premarital agreement would result in one party becoming eligible for public assistance, the court may require the other party to provide support to the extent necessary to avoid the use of public assistance.
What else can I include?
Aside from the above exceptions, premarital agreements can cover nearly any issue pertaining to the assets, income and liabilities of the parties in a marriage.
This includes but is not limited to the distribution of real estate, the administration of trusts or wills, each party’s right to death benefits from a life insurance policy, the division of all personal property and any other assets or funds owned by the parties.