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PUBLICITY 101 FOR THE FAMILY LAWYER ........................................1

MARITAL AGREEMENTS: A DO’S AND DON’T PRIMER .................... 8

IN THIS ISSUE

VOLUME 18, NUMBER 1 JUNE, 2003

cont. next page

by Rebecca L. Burton, Esquire

As we are all too aware, lawschool does not teach you all as-pects of the actual practice oflaw. Facing the world ten yearsago clutching my treasured J.D.,little did I know I was entirelyunprepared for a call from thepress.

Some attorneys, finding them-selves with a newsworthy case,make that call themselves or atleast encourage their usuallyvery angry client to do so. Someattorneys even hire a publicistfor that purpose. Other attor-neys, like myself, have foundthemselves at the receiving endof the angry opposition and,when faced with the suddentelevision camera, freezes up likea deer in the headlights. Whatto do? Suddenly, one is walkinga tightrope between the self-in-

PUBLICITY 101 FORTHE FAMILY LAWYER

N RFL Nevada Family Law Report

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June, 2003

NEVADA FAMILY LAW REPORT is aquarterly publication of the Family LawSection of the State Bar of Nevada.

Subscription price for non-sectionmembers is $35 payable in advance an-nually from January 1 to December 31.There are no prorations.

The NEVADA FAMILY LAW REPORTis intended to provide family law relatedmaterial and information to the benchand bar with the understanding that nei-ther the State Bar of Nevada, Family LawSection editorial staff nor the authors in-tend that its content constitutes legal ad-vice. Services of a lawyer should be ob-tained if assistance is required. Opinionsexpressed are not necessarily those of theState Bar of Nevada or the editorial staff.

This publication may be cited as Nev.Fam. L. Rep, Vol. 18, No.1, 2003 at ____.

Nevada Family Law Report is supportedby the Family Law Section of the StateBar of Nevada and NFLR subscriptions.

Co-EditorsRandy A. Drake

Edward L. Kainen

Family Law SectionExecutive Council

Edward L. Kainen, ChairRandy A. Drake, Vice-Chair Rebecca L. Burton, Secretary

Todd L. Torvinen, Financial Officer

Hon. T. Arthur Ritchie, Las VegasRebecca A. Burton, Las Vegas

Denise Gentile, Las VegasWilliam G. Henderson, Las Vegas

Peggy Manes, RenoE.A. "Bo" Pollard, Incline Village

Hon, Michael P. Gibbons, MindenWilliam S. Potter, Las VegasJeanne Winkler, Las Vegas

dulgent desire for personal at-tention and the necessity of pro-tecting one’s client or their ownreputation. Even for the clientwho wants their story told, thepress doesn’t always tell thestory in a neutral manner andthere is the risk that thereporter’s spin will be unfavor-able to your client’s position.

That first admittedly excitingcall occurred about five yearsafter I began practicing law. Get-ting into the case, I had no ideait would become the subject ofpublic controversy. Represent-ing dad, I had defeated mom’smotion to relocate with the threeminor children to a foreign coun-try. The case became newswor-thy after mom took her side ofthe story to the press. Mom sub-sequently filed a motion for re-consideration. Sitting among theaudience at that second hearing,I thought I recognized a reporter.Nevertheless, upon leaving thecourthouse, I was surprisedwhen a news camera waspointed at my face. I rememberhoping I said a few coherentwords. Although the story waswidely reported (my father liv-ing in Minnesota heard the storybeing debated on a radio pro-gram), I do not believe I actuallypersonally appeared on televi-sion. Since my client was anx-ious to get his version of thestory told, I accepted subsequentcalls from the newspapers.Aware of horror stories aboutwords getting misrepresented inthe press, I was pleased that Iwas promised the opportunity toapprove my quotes before theywere printed. Sucked into thereporter ’s apparent empathywith my client’s position, I feltcomfortable sharing a good deal

of information about dad’s sideof the story. Thus, I was disap-pointed that many facts I sharedwhich helped dad were ignored,resulting in the story ultimatelyfavoring mom.

Although I did not go out seek-ing newsworthy cases, the nextopportunity for a brush with themedia was probably more pre-dictable. I was referred a case inwhich I defended the right of a15 year old girl to marry her 48year old guitar instructor againstthe wishes of the girl’s fatherwho wanted the marriage an-nulled. Not even an hour passedafter I prevailed at the hearingbefore I began getting calls fromthe press. I was even invited tomake appearances on nationaltelevision — unfortunately theywere tabloid talk shows and en-tertainment news programs.Recognizing that these folkswere not likely interested in de-bating the finer points of the con-stitutionality of Nevada’s mar-riage statute,1 I declined.

My most recent media adven-ture was yet again defensive innature and not pleasant at all.Representing mom in a disputebrought by dad concerning thefuneral of their murdered tod-dler, the case was undeniablyhigh profile. Asked to help, Iagreed. Hoping to soothe theraw emotions created by thishorrific tragedy, we quicklysettled. Meanwhile, dad’s attor-ney passed out his court papersto the press, hired a publicist,and, by grabbing the upper handin the media, kept the matter in-flamed long after a formal reso-lution was reached. Frustratedwith the entirely inaccurate rep-resentations being made con-cerning mom’s alleged unwill-ingness to cooperate as well aswith my own characterization as

Publicity cont.

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the unnamed attorneywho’“refused to return tele-phone calls,” I finally concededan interview with a news re-porter. Again, while the reporterappeared empathetic with ourside of the story, what actuallyappeared on television wasmerely the very shortest of“sound bites.” Nevertheless,there was a moment of pride inseeing myself as a professionalon television, properly identifiedwith my name spelled correctly.

Of course, there is always thechance for truly unanticipatedpublicity — especially with ourvideo taping court reporting sys-tem. Out of the blue one day, Ireceived a telephone call from anunknown source telling me thatthey “had the video tape” andasked if I wanted a copy. Natu-rally, I was curious. As I watchedthe videotape, I was baffled tosee a segment of the Judge MillsLane television show. Soon,however, I recognized a formerclient as the defendant. Theplaintiff was the former client’sex-spouse who had brought asmall claims action against myformer client over the destruc-tion of the plaintiff’s personalproperty by my former client.My amusement turned to con-sternation when as proof that myclient “did it,” the plaintiff of-fered his “Exhibit A.” It wasthen I realized what was coming.“Exhibit A” was our Eighth Ju-dicial District Family Courtvideo tape memorializing ourreturn before the Judge duringwhich I was forced to explainwhy my client utterly failed thepolygraph examination she hadvolunteered to take on that veryissue. Much to my relief, my facewas blanked out by fuzzy littlesquares. Thus, that was my onlyappearance professionally on

national television.Unable to shake the nagging

guilt that as family law lawyers,we ought not exploit someoneelse’s tragedy as a means ofgrabbing personal attention, yetenjoying — at least a little — thespotlight when it points evenever so inadvertently in my di-rection, I began to write this pa-per. Trying to find guidelines innavigating the media tango, Ibegan my research.

Assuming that the AmericanAcademy of Matrimonial Law-yers probably, as a group, mustdeal with more high profile casesthan most, I turned to the AAMLwebsite and found an interestingarticle entitled “Representing theHigh Profile Client and Celeb-rity” by Kathy Kinser, Spring2001.2 In a section of her articledevoted to publicity, Ms. Kinsertells us:

[T]he prudent familylaw specialist will strike abalance between the need to

protect a client’s privacy andthe benefits of media atten-tion. Too often, attorneys arewilling to only say, “No com-ment.” Too often, “No com-ment” hurts one’s clientmore than talking to the me-dia. The media can be astrong ally in a high profilecase, and proper use of themedia can strengthen one’scase tremendously.

One of the main reasons itis important to provide alittle information to the me-dia in high profile cases issimple. In today’s society,the lack of an answer or com-ment is often perceived as asign of weakness, or a signthat someone is trying tohide something. Although intheory the case is only sup-posed to be tried in the court-room, in reality high profilecases are tried in the publicforum as well. . . .

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Ms. Kinser wisely advised,“each state’s laws and profes-sional rules should be consid-ered prior to making any publicstatement on behalf of your cli-ent.”

Following Ms. Kinser’s advice,I reviewed Nevada law andfound only one rule regardingpublicity. Among the SupremeCourt Rules of Professional Con-duct is Rule 177, which providesas follows:

Rule 177. Trial publicity.

1. A lawyer shall not makean extrajudicial statementthat a reasonable personwould expect to be dissemi-nated by means of publiccommunication if the lawyerknows or reasonably shouldknow that it will have a sub-stantial likelihood of materi-ally prejudicing an adjudica-tive proceeding; however, alawyer may make a state-ment if the lawyer has a goodfaith belief, based upon thetotality of facts and circum-stances known to the lawyerat the time, that the contentof the statement is admis-sible at a subsequent hearingor trial or properly arguablefrom anticipated evidence;and

(a) The statement protectsthe public from substantialfuture harm; or

(b)The statement is onethat a reasonable lawyerwould believe is required toprotect a client from the sub-stantial undue prejudicialeffect of publicity not initi-ated by the lawyer or thelawyer’s client and is limitedto such information as is nec-essary to mitigate the ad-verse publicity; or

(c) The statement revealsgovernmental corruption orabuse of power.Unfortunately, the case law

which interprets SCR 177 is al-most non-existent. The body ofcase law which deals with attor-ney communications with themedia involves analysis ofwhether a criminal case shouldbe reversed due to media infor-mation prejudicing the jury.Those cases focus on the affectthe media’s disbursement of in-formation may have in contrib-uting to an unfair trial. Thosecases do not generally commenton the attorney’s breech of eth-ics. In Williams v. State, 103 Nev.106 (1987), however, the NevadaSupreme Court did criticize aprosecutor for breech of profes-sional conduct regarding inap-propriate comments to the pressand made the admonishmentthat “lawyers are to try theircases in the courts, not in themedia.” Id. at 110.

The only case with interpretsthe statute directly is Gentile v.State Bar, 106 Nev. 60 (1990) in-volving a previous version ofSCR 177.3 In Gentile v. State Bar,the Nevada Supreme Court af-firmed the State Bar’s privatereprimand of a criminal defenseattorney for making certainstatements to the press, whichwere found to violate SCR 177.However, the case against the at-torney was reversed by theUnited States Supreme Court.Gentile v. State Bar of Nevada, 501U.S. 1030, 111 S.Ct. 2720 (1991).Applying First Amendmentanalysis, the United States Su-preme Court found our priorNevada SCR 177 unconstitution-ally vague, especially becauseNevada lacked interpretive law.

The United States SupremeCourt also affirmatively recog-

nized that “in some circum-stances press comment is neces-sary to protect the rights of theclient and prevent abuse of thecourts.” Id. at 1058. Importantto the United States SupremeCourt was that the speech criti-cized government activities, thespeech was timed many monthsbefore trial so it would not havelikely prejudiced the juror pool,and that, prior to the speech, theattorney had made a conscien-tious effort to study SCR 177 andabide by it.

SCR 177 has been subse-quently changed to its currentversion, but no case since thenhas interpreted the rule as cur-rently written.

The ABA Model Rules of Pro-fessional Conduct,4 however, aresimilar to the current SCR 177 insome respects and offer com-mentary, which is useful. Mosthelpful to family law lawyers arethe following points to ponder:

[1] It is difficult tostrike a balance between pro-tecting the right to a fair trialand safeguarding the right offree expression. Preservingthe right to a fair trial neces-sarily entails some curtail-ment of the information thatmay be disseminated abouta party prior to trial, particu-larly where trial by jury isinvolved. If there were nosuch limits, the result wouldbe the practical nullificationof the protective effect of therules of forensic decorumand the exclusionary rules ofevidence. On the other hand,there are vital social interestsserved by the free dissemina-tion of information aboutevents having legal conse-quences and about legal pro-ceedings themselves. Thepublic has a right to know

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about threats to its safety andmeasures aimed at assuringits security. It also has a le-gitimate interest in the con-duct of judicial proceedings,particularly in matters ofgeneral public concern. Fur-thermore, the subject matterof legal proceedings is oftenof direct significance in de-bate and deliberation overquestions of public policy.

[2] Special rules of con-fidentiality may validly gov-ern proceedings in juvenile,domestic relations and men-tal disability proceedings,and perhaps other types oflitigation. . . .

[3] The Rule sets fortha basic general prohibitionagainst a lawyer’s makingstatements that the lawyerknows or should know willhave a substantial likelihoodof materially prejudicing anadjudicative proceeding.Recognizing that the publicvalue of informed commen-tary is great and the likeli-hood of prejudice to a pro-ceeding by the commentaryof a lawyer who is not in-volved in the proceeding issmall, the rule applies onlyto lawyers who are, or whohave been involved in theinvestigation or litigation ofa case, and their associates.

. . . .

[6] Another relevantfactor in determining preju-dice is the nature of the pro-ceeding involved. Criminaljury trials will be most sen-sitive to extrajudicial speech.Civil trials may be less sen-sitive. Non-jury hearingsand arbitration proceedingsmay be even less affected.

The Rule will still place limi-tations on prejudicial com-ments in these cases, but thelikelihood of prejudice maybe different depending onthe type of proceeding.

[7] Finally, extrajudicialstatements that might other-wise raise a question underthis Rule may be permissiblewhen they are made in re-sponse to statements made

publicly by another party,another party’s lawyer, orthird persons, where a rea-sonable lawyer would be-lieve a public response is re-quired in order to avoidprejudice to the lawyer’s cli-ent. When prejudicial state-ments have been publiclymade by others, responsivestatements may have thesalutary effect of lesseningany resulting adverse impacton the adjudicative proceed-ing. Such responsive state-ments should be limited tocontain only such informa-tion as is necessary to miti-gate undue prejudice createdby the statements made byothers. . . .

Continuing in my search forguidance, I returned to theAmerican Academy of Matrimo-nial Lawyers and the Bounds ofAdvocacy. Lo and behold, Sec-tion 2.9 deals specifically withpublicity as follows:

An attorney should notcommunicate with the me-dia about an active case un-der most circumstances. Anattorney should not commu-

nicate with the media abouta case, a client or a formerclient without the client’sprior knowledge and con-sent, except in exigent cir-cumstances when client con-sent is not obtainable.The AAML’s Comments, with

which I wholeheartedly agree,were the most enlightening:

Statements to the media byan attorney representing aparty in a family law mattermay be inappropriate be-cause family law matterstend to be private and inti-mate. They are not the busi-ness of anyone but the par-ties and their family. Publicdiscussion of a case tends toobstruct settlement, cause

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embarrassment, diminishthe opportunity for reconcili-ation and harm the family,especially the children.Statements to the media byan attorney representing aparty in a matrimonial mat-ter are also potentially im-proper because they tend toprejudice an adjudicativeproceeding.

An attorney’s desire to ob-tain publicity conflicts withthe duty to the client. If con-tacted by the media, the at-torney should respond bysaying: “I cannot give youinformation on that matterbecause it deals with the per-sonal life of my client.” Theattorney, as an officer of thecourt, has duties to both thecourts and the client. Theparties, subject to order ofthe court, have a right to dis-cuss their case if they so de-sire, despite the advice oftheir counsel. However, alawyer ’s statements mayhave the effect of influencingan adjudicative body pres-ently sitting or to be con-vened in the future. An at-torney may withdraw if theclient disobeys instructionsnot to speak publicly aboutthe case.

It is no excuse that the op-posing party, his counsel oragents, first discussed thematter with the media.However, if necessary tomitigate recent adverse pub-licity, the attorney may makea statement required to pro-tect the client’s legitimateinterests. Any such state-ment should be limited toinformation essential to miti-gate the recent adverse pub-licity.

An attorney should neverattempt to gain an advantagefor the client by providinginformation to the media toembarrass or humiliate theopposing party or counsel.Jury trials are uncommon in

the Family Court (unless, ofcourse, we start trying domestictorts in Family Court)5 Becausecomments made by family attor-neys to the press are less likelyto influence the outcome of acase tried by a judge, those com-ments are less susceptible tocriticism and ethics violation.Still, our judges are human be-ings who must rely on the pub-lic to re-elect them to keep theirjobs and, therefore, are some-what vulnerable to public opin-ion created by the press. Thus,while the temptation to make aname for oneself is great, bitingone’s tongue may be the saferand more ethical approach.

The combined guidelines of-fered by these various commen-taries caution angry attorneystempted to take their displea-sures to the press to instead takea big deep breath, or run the riskof violating ethics rules. Lessrisky is being forced to speak outto protect a client who is beingabused by public commentary,which has not been initiated bythem or by you acting as theirattorney. At the very least, athoughtful consideration of theethical principles set forth inthese various guidelines may al-low one to bask in that spotlightwithout adverse professionalconsequences.6

NOTES1 Incidentally, the constitutionality of our

marriage statute and the validity of thatsensational marriage was upheld by theNevada Supreme Court by a (pardon

the pun) hot off the presses decision inKirkpatrick v. District Court, 119 Nev.Adv. Op. No. 8 (March 14, 2003).

2 To find the article, go to http://aaml.org/

Articles/2001-03/KinserCelebrity.org

3 In their opinion at pages 1060-62, the

United States Supreme Court opinionset out Nevada ’s prior SCR 177 asfollows:

Trial Publicity

1. A lawyer shall not make anextrajudicial statement that areasonable person would expectto be disseminated by means ofpublic communication if thelawyer knows or reasonablyshould know that it will have asubstantial likelihood of materi-ally prejudicing an adjudicativeproceeding.

2. A statement referred to insubsection 1 ordinarily is likely tohave such an effect when it refersto a civil matter triable to a jury, acriminal matter, or any otherproceeding that could result inincarceration, and the statementrelates to:

(a) the character, credibility,reputation or criminal record of aparty, suspect in a criminalinvestigation or witness, or theidentity of a witness, or theexpected testimony of a party orwitness;

(b) in a criminal case or proceedingthat could result in incarceration,the possibility of a plea of guiltyto the offense or the existence orcontents of any confession,admission, or statement given bya defendant or suspect or thatperson’s refusal or failure to makea statement;

(c) the performance or results of anyexamination or test or the refusalor failure of a person to submit toan examination or test, or theidentity or nature of physicalevidence expected to be pre-sented;

(d) any opinion as to the guilt orinnocence of a defendant orsuspect in a criminal case orproceeding that could result inincarceration;

(e) information the lawyer knows orreasonably should know is likely

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to be inadmissible as evidence ina trial and would if disclosedcreate a substantial risk ofprejudicing an impartial trial; or

(f) the fact that a defendant has beencharged with a crime, unless thereis included therein a statementexplaining that the charge ismerely an accusation and that thedefendant is presumed innocentuntil and unless proven guilty.

3. Notwithstanding subsection 1 and2 (a-f), a lawyer involved in theinvestigation or litigation of amatter may state withoutelaboration:

(a) the general nature of the claim ordefense;

(b) the information contained in apublic record;

(c) that an investigation of the matteris in progress, including thegeneral scope of the investigation,the offense or claim or defenseinvolved and, except whenprohibited by law, the identity ofthe persons involved;

(d) the scheduling or result of anystep in litigation;

(e) a request for assistance inobtaining evidence and informa-tion necessary thereto;

(f) a warning of danger concerningthe behavior of a person involved,when there is reason to believethat there exists the likelihood ofsubstantial harm to an individualor to the public interest; and

(g) in a criminal case:

(i) the identity, residence, occupationand family status of the accused;

(ii) if the accused has not beenapprehended, informationnecessary to aid in apprehensionof that person;

(iii) the fact, time and place of arrest;and

(iv) the identity of investigating andarresting officers or agencies andthe length of the investigation.

4 Model Rules of Professional Conduct,

Client-Lawyer Relationship

Rule 3.6 Trial Publicity

(a) A lawyer who is participating orhas participated in the investiga-tion or litigation of a matter shallnot make an extrajudicialstatement that the lawyer knows orreasonably should know will bedisseminated by means of publiccommunication and will have asubstantial likelihood of materiallyprejudicing an adjudicativeproceeding in the matter.

(b) Notwithstanding paragraph (a), alawyer may state:

(1) the claim, offense or defenseinvolved and, except whenprohibited by law, the identity ofthe persons involved;

(2) information contained in a publicrecord;

(3) that an investigation of a matter isin progress;

(4) the scheduling or result of anystep in litigation;

(5) a request for assistance inobtaining evidence and informa-tion necessary thereto;

(6) a warning of danger concerningthe behavior of a person involved,when there is reason to believethat there exists the likelihood ofsubstantial harm to an individualor to the public interest; and

(7) in a criminal case, in addition tosubparagraphs (1) through (6):

(i) the identity, residence, occupationand family status of the accused;

(ii) if the accused has not beenapprehended, informationnecessary to aid in apprehensionof that person;

(iii) the fact, time and place of arrest;and

(iv) the identity of investigating andarresting officers or agencies andthe length of the investigation.

(c) Notwithstanding paragraph (a), alawyer may make a statement thata reasonable lawyer would believeis required to protect a client fromthe substantial undue prejudicialeffect of recent publicity notinitiated by the lawyer or thelawyer’s client. A statement madepursuant to this paragraph shall belimited to such information as isnecessary to mitigate the recentadverse publicity.

(d) No lawyer associated in a firm orgovernment agency with a lawyersubject to paragraph (a) shallmake a statement prohibited byparagraph (a).

5 See “Domestic Torts in Nevada: A New

and Potentially Dangerous Frontier forthe Nevada Family Law Practitioner,”Eric A. Pulver, Esquire, and RonaldLogar, Esquire, NFLR, Volume 17,Number 2, September 2002.

6 Hey, Chris Boadt! I’ve got a CLE idea.

How about an Ely roundtable headedby an attorney who deals regularlywith high profile cases, a publicist, anda member of the press?

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While there are exceptions, marriage isgenerally a heady

thing to contemplate for all ofour clients. On occasion, a pre-marital agreement may be in or-der. There are two primary situ-ations in which these agreementsare utilized. The first is whenone of the prospective spousesis in a much stronger financialposition, with either assets or in-come earning ability, and thatparty wishes to protect those as-sets in the event of divorce. Thesecond is when an older coupleis getting married and both par-ties want to make sure they canleave their assets to the naturalobjects of their bounty.

Generally, marital agreementsor contracts require full disclo-sure of all assets, a written docu-ment, and both parties’ signa-tures. Additionally, in order fora prenuptial agreement to beheld valid, the marriage mustoccur. If the marriage is laterheld to be void, the agreementis held valid only to the extentof avoiding an inequitable result.

PREMARITALAGREEMENTS

GENERALLYPremarital agreements are cov-

ered in the Nevada Statutes un-der 123A, otherwise known as

MARITAL AGREEMENTS: A DO’S AND DON’TS PRIMER

By Fred Page, Esq.

the Uniform PremaritalAgreements Act(UPAA). The provi-sions of the UPAA ap-ply to any premaritalagreement executedon or after October1, 1989, but anypremarital agree-ment made beforethat date is en-forceable if itconforms to thecommon law,as interpretedby the courtsof this statebefore thatdate, or ther e q u i r e -ments of the UPAA.

By definition, a premaritalagreement is one “between pro-spective spouses made in con-templation of marriage and to beeffective upon marriage.” NRS123A.030(1). It affects property– broadly defined as “an inter-est, present or future, legal or eq-uitable, vested or contingent, inreal or personal property, includ-ing income and earnings.” NRS123A.030(2).

A premarital agreement mustbe in writing and signed by bothparties. It is enforceable withoutconsideration, and is effectiveupon marriage. NRS 123A.040and 123A.060. The court will ap-ply equitable relief, if the mar-

riage islater held to be void, inthe form of enforcement of theagreement to the extent requiredto avoid an inequitable result.NRS 123A.090, see also NRS123A.100.

The Nevada Revised Statutesprovide additional guidance onformation. All marriage con-tracts must “be in writing, andexecuted and acknowledged orproved in like manner as a con-veyance of land is required to beexecuted and acknowledged orproved.” See NRS 123.270. Cer-tain agreements are void unlessthe agreement is in writing and

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subscribed by the party to becharged. See NRS 111.220. Thisspecifically includes “everypromise or undertaking madeupon consideration of marriage,except mutual promises tomarry.” However, the “right ofa child to support may not beadversely affected by a premari-tal agreement.” See NRS123A.050(2).

The parties may amend theagreement after marriage or re-voke it, in whole or in part, by alater signed written agreement.No consideration is required fora revocation to be enforceable.NRS 123A.070. But see Jensen v.Jensen, 104 Nev. 95, 753 P.2d 342(1988) (In a pre-Act decisionwhere the prenuptial agreementwas modified orally, in an agree-ment which expressly providedthat its terms could be changed,the parties’ consent to modifica-tion was implied from their con-duct consistent with the assertedmodification).

No attorney should either pre-pare a premarital agreement, orapprove a premarital agreementfor his client, without first scru-tinizing the story in Sogg v. Ne-vada State Bank, 108 Nev. 308, 832P.2d 781 (1992). Essentially, thefacts provide a model for allthings not to do in a case, includ-ing choosing the attorney for theother party, leaving a party with-out ample to review the docu-ment, interrupting the otherparty’s appointment with coun-sel by barging in and yelling“What’s taking so long!” or oth-erwise forcing a party to sign anagreement under duress.

JUDICIAL REVIEW,DISCLOSURE ANDFAIRNESS

Premarital agreements prior tothe adoption of the Act (October

1, 1989) are controlled by thecommon law as interpreted bythe Nevada courts. The Su-preme Court can review the va-lidity of a premarital agreementde novo. See Fick v. Fick, 109 Nev.458, 851 P.2d 445 (1993). Also,the issue of unconscionability ofa premarital agreement shall bedecided by the court as a matterof law. NRS 123A.080(3).

In Sogg v. Nevada State Bank,supra, the court concluded thatif the disadvantaged partywould have received more un-der community property laws,the agreement is presumed to befraudulent. That presumptioncan be overcome by showing thedisadvantaged party (1) hadample opportunity to obtain theadvice of an independent attor-ney, (2) was not coerced intomaking a rash decision by thecircumstances under which theagreement was signed, (3) hadsubstantial business experienceand business acumen, and (4)was aware of the financial re-

sources of the other party andunderstood the rights that werebeing forfeited. See also Muscelliv. Muscelli, 96 Nev. 41, 604 P.2d1237 (1980).

The Sogg court relied on thefollowing factors in determiningthe premarital agreement wasinvalid:

(1) The husband’s attorneydrafted the agreement andselected the wife’s attorneyfor review of the agreement;

(2) the disadvantagedparty was never advised thatshe should select her ownattorney;

(3) the agreement did nothave an asset list attached,although it referred to suchan attachment;

(4) the selected attorneyfor the disadvantaged partyhad a brief conference withthe wife, and refused to signthe “advice” certificate onthe agreement;

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(5) the disadvantagedparty was not given a copyof the agreement to take toanother attorney prior tosigning; and,

(6) the disadvantagedparty was not presented theagreement for review by in-dependent counsel until thewedding day, and was notgiven time to consult inde-pendent counsel.

As with all contracts, the courtretains the power to refuse toenforce a particular premaritalagreement if it is unconscio-nable, obtained through fraud,misrepresentation, material non-disclosure or duress. See Lewisv. Lewis, 53 Nev. 398, 2 P.2d 131(1931); Daniel v. Baker, 106 Nev.412, 794 P.2d 345 (1990).

Counsel and their clients canavoid attacks on premaritalagreements at a later date by fol-lowing the “fair and equitable”guidelines to avoid being ac-cused of the agreement being“unconscionable.” Counselshould also keep in mind thatwhat falls under an unconscio-nable standard is a moving tar-get – what is fair for a five yearmarriage may be unconscio-nable for a twenty year marriage.As an example, an agreementwhich provides the weakerspouse only gets 15% of theproperty during the course of themarriage and no alimony, maybe fair for a five-year marriage,but may be considered uncon-scionable after a twenty-yearmarriage.

The parties share a confiden-tial, fiduciary relationship, andeach has a responsibility to actwith good faith and fairness tothe other. Such responsibilitycontemplates that each partywill make a full and fair disclo-

sure prior to the execution of apremarital agreement. See NRS123A.080(1)(c); Fick v. Fick, 109Nev. 458, 851 P.2d 445 (1993); andAmie v. Amie, 106 Nev. 541, 796P.2d 233 (1990).

POSTNUPTIALAGREEMENTS -

MARRIAGECONTRACTS

GENERALLYSimilar to the Act, the Nevada

Revised Statues allow for mar-riage contracts under Chapter123, a subset of the chapter deal-ing with “Rights of Husbandand Wife.” This chapter also ad-dresses general provisions, sepa-rate property, and communityproperty. Further, Nevada willhonor either postnuptial or an-tenuptial agreements executedin another state. The agreementsare controlled by the law of thatstate at the time of the execution

of the agreement. Barbash v.Barbash, 91 Nev. 32, 535 P.2d781(1975), Braddock v. Braddock,91 Nev. 735, 542 P.2d 1060 (1975),and Powers v. Powers, 105 Nev.514, 779 P.2d 91 (1980).

FORM AND CONSENTThe parties are free to engage

in marriage contracts. Eitherhusband or wife may enter intoa contract with the other, or withany other person affecting prop-erty, which either might enterinto if unmarried. They arebound by the general rules,which control the actions of per-sons “occupying relations ofconfidence and trust towardeach other.” NRS 123.070. NRS123.080 provides that partiescannot alter their legal relations,except as to property, and exceptthat they can agree to an imme-diate separation and provide forsupport during separation. Mu-tual consent is sufficient consid-eration. NRS 123.080(2). A com-

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mon use is the property settle-ment agreement at divorce. SeeNRS 123.080(4).

All marriage contracts orsettlements must be in writing,executed and acknowledged orproved in like manner as a con-veyance of land is required to beexecuted, acknowledged orproved. NRS 123.270. In otherwords, the agreement must beready for recording, and re-corded, with the County Re-corder wherever the real prop-erty of the marriage is located.NRS 123.280. The agreement isnot valid for real property if noattempt is made to record thedocument, except as the agree-ment relates between the parties.NRS 123.300. Essentially, the re-corded agreement acts as noticeto all persons that an encum-brance is placed in the chain oftitle. NRS 123.290.

Separate or community prop-erty can be transmuted by theagreement of the parties. Theagreement may be oral. SeeMulikin v. Jones, 71 Nev. 14, 278P.2d 876 (1955). An oral agree-ment supported by documentsof note and deed of trust can sat-isfy the statute of frauds andNRS 111.210(1). See Daniel v. Ex-ecutrix of the Estate of Hiegel, 96Nev. 456, 611 P.2d 207 (1980).Parties are estopped to assert therequirement that an agreementbe in writing where an oralagreement at the time of separa-tion dividing assets has beenfully performed. See Schreiber v.Schreiber, 99 Nev. 453, 663 P.2d1189 (1983). However, an agree-ment conveying a real propertyinterest must be in writing. SeeOcchiuto v. Occhiuto, 97 Nev. 143,625 P.2d 568, NRS 111.220.

An agreement can provide forsupport and the division of

property and survive the decreeof divorce. The decree, however,must provide the agreement isnot merged, but survives thedecree. See Day v. Day, 80 Nev.386, 395 P.2d 321 (1964). Theparties may remove the subjectmatter of the agreement fromlitigation in divorce and theymay agree to merge the agree-ment into the decree. Balin v.Balin, 78 Nev. 224, 371 P.2d 32(1962).

CONCLUSIONFor cases like Sogg, it is not too

difficult to see why the partiesended up getting divorced. Il-lustrative as the case is, it is hardto imagine who would want toenter a marriage under thoseconditions. As can be seen, mostof the problems stem from thefinancially stronger party’s un-willingness to adhere to basicconcepts of fairness. Discretionis the better part of valor, andavoiding the problems of Fickand Sogg can be relativelysimple. Counsel and client canavoid attacks on the agreementat a later date by following theproper “dos’s and don’ts”.

Do ensure:1. The agreement is in writing.2. The other party has ample

time to review the agreement.3. The other spouse or prospec-

tive spouse has access to an in-dependently chosen counsel,and ample time in which to con-fer with said counsel.

4. The other party’s counsel iswilling to sign an “advised” cer-tificate.

5. There is full and completedisclosure of all assets.

6. The terms are fair and equi-table, or

7. That the party relinquishinga fair and equitable settlement:

A. has substantial business ex-perience and business acumen,and

B. is aware of the financial re-sources of the other party andunderstands the rights that arebeing forfeited.

Don’t allow:1. Duress to be used to coerce

the other party into making arash decision.

2. An oral arrangement to beconsidered a “prenuptial agree-ment.”

3. A written “agreement” to bethrust at the other party for sig-nature within days, hours, ormoments before the weddingceremony.

4. An agreement to be signedwithout having been read.

5. An agreement to be signedwithout having a full disclosureof each party’s assets.

6. One party (or that party’sattorney) to choose the otherparty’s attorney.

7. One party to interfere withthe other party’s ability to con-fer independently with counsel.

8. One party to keep all of theassets acquired by his or hergreater earning capacity duringthe marriage, no matter howlong the marriage lasts.

By adhering to these simplesteps, both parties can be en-sured of an equitable, sustain-able agreement.

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State Bar of NevadaFamily Law Section600 E. Charleston Blvd.Las Vegas, NV 89104