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Community Property and Premarital Agreements

Community vs. Separate Property

Once a couple marries, all property acquired during marriage is considered community property unless otherwise specified by an agreement in writing, a decree of separation or divorce. A husband and wife have equal interests in community property. If the husband works and buys a property with his income, the property belongs to both parties equally.

Separate property is property owned by a spouse before marriage and property acquired by the spouse after marriage by gift or inheritance. The pain and suffering and suffering portion of an award for personal injury damages is also separate property. An award for medical expenses is not separate property, because the medical expenses are community debts. Neither the separate property of a spouse nor the spouse’s share of the community property is liable for the debts of the other spouse incurred before the marriage. Neither party has an interest in the separate property of the other. Each spouse has the right to manage his own separate property.

When one spouse dies, the surviving spouse owns an undivided one half interest in the community property. The remaining interest in the community property is subject to distribution according to the decedent’s will if he or she had a will. In the absence of a will, the decedent’s community property interest will go to the surviving spouse.

Agreements between the spouses

Nevada law provides that each spouse can give written authority to the other spouse to keep his  earnings and not share them with the other spouse. This is considered is a gift from one spouse to the other.

Nevada has adopted the Uniform Premarital Agreements Act. The Act provides that the premarital agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The Act defines property as an interest, present and future, legal or equitable, vested or contingent, in real property, personal property including income in earnings.

A premarital agreement must be in writing and signed by both parties. It is enforceable even though the party did not receive anything in exchange in consideration of signing the agreement. This means that the enforceability of the contract comes from the fact that both parties made this agreement and made promises to each other and the promises are the consideration for the contract.

A premarital agreement can cover: the rights and obligations of each of the parties to any property of either or both parties wherever and whenever acquired and located, the right to buy, sell, manage or mortgage the property, how the property will be disposed of upon legal separation or divorce, and modification or elimination of alimony or support of a spouse. The agreement can also address the making of a will, or trust, and the ownership rights in and disposition of the death benefits from a life insurance policy. Spouses can choose which state law will govern the interpretation of the agreement.

The premarital agreement becomes effective once the parties are married and it has no force and effect unless the parties got married.

Requirements for an Enforceable Premarital Agreement.

To be enforceable, a premarital agreement must be in writing. Parties must enter the agreement  voluntarily. The party offering the agreement must make full financial disclosure. However, the other party can waive the disclosure. Such waiver must be voluntary, express and in writing. Agreements unconscionable when executed may be unenforceable.

Duty of providing the necessities of life:

The law states that a spouse cannot enter into an agreement with the other spouse limiting the responsibility to support him or her. The exception to this rule is that the parties can enter into an agreement on the eve of the divorce or separation as to what the alimony provisions will be.
Furthermore, during marriage, the separate property of a spouse should be used, if necessary, to provide support for necessities of life of the other spouse.