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Divorce Lawyer Las Vegas
(702) 222-4021
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6252 SOUTH RAINBOW BLVD.,
SUITE 100
LAS VEGAS, NV 89118
Las Vegas Divorce Attorney


Divorce Attorneys Las Vegas

Las Vegas Family Law Attorneys


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.

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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.1

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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.2 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.3 To date, however, there is no Nevada authority distinguishing between the fiduciary relationships of fiances and married persons.

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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.4 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 an agreement, with potential effects up to treating any such agreement a "nullity" if they do not in fact separate.5

1 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).

2 DeLee v. Roggen, 111 Nev. 1453, 907 P.2d 168 (1995); Morgan & Turner, ATTACKING AND DEFENDING MARITAL AGREEMENTS § 1.01 (ABA 2001).

3 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.

4 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).

5 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).


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