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Premarital Background Checks


While prenuptial, or premarital agreements, have been popular for years, the Wall Street Journal recently published an article stating that private investigators are increasingly performing background checks on prospective spouses.  Investigators around the country report that their business has boomed with people wanting to confirm whether their prospective spouse has any “deal-breaking habits and secrets.”


The new trend is driven by the increase of online dating and online relationships.  While many have income or assets to protect, many simply want to make sure that they are getting involved with someone legitimate and not any type of scam.  Costs will range depending on how in depth an investigation is sought, but an individual can sometimes learn a significant amount of information just by googling a person.  Investigators may find nothing, but in some cases find “undisclosed debt, criminal convictions, hidden addictions and infidelity.”


The article notes that a background investigation on your prospective spouse can raise “moral questions for some couples.  If a relationship is based on trust, “what does a background check say about the person pay for it – and the relationship itself.”  A background check can be particularly problematic if the person being investigated finds out.  For some hopeful, especially those who have had a problem relationship in the past, are better safe than sorry.


The Nevada Marriage Contract


It is said that marriage is a contract.  Under the law, a contract must have three elements: an offer, acceptance, and consideration.  Traditionally, the groom proposes (the offer), the bride says “yes” (the acceptance), and the two marry (the consideration).  To be legally binding upon the parties, a contract also requires a “meeting of the minds” as to its terms.  The law presumes that when a couple marry, they know the rights and obligations which arise from their marital contract, but do they?  It could be reasonably argued that most people entering into marriage do not understand their marital obligations and the ramifications of those obligations should the marriage end in divorce.  Many people, when faced with divorce, are shocked when they learn what the law actually provides.  If they truly understood the responsibilities that go along with the marital union, some would likely question whether they want to enter into the marriage contract at all.  Those few that do understand the consequences of marriage will typically choose to enter a prenuptial agreement.  A prenuptial agreement is, as its name implies, a premarital contract.  As part of the prenuptial agreement process, prospective spouses consult with attorneys who explain the laws which govern married persons and how those laws will be implemented in the event of divorce.  In drafting the prenuptial agreement, the parties alter the application of the law to their specific marital union and thereby come to a true meeting of the minds with regard to their marital contract.


When you purchase a home, you sign voluminous pages of a contract setting forth your rights and obligations.  When you purchase a car there is a detailed contract.  Even as something as simple and buying a ticket for a movie involves an express contract printed on the ticket.  When it comes to something as important as marriage, however, the law does not require informed consent.  Although it would likely never happen, any person applying for a marriage license should be required to take a short seminar on community property law.



Omitted Assets in Nevada


You are a homemaker who is divorced after 20 years of marriage.  Your divorce proceeding has been concluded for over 2 years.  The assets and liabilities have been divided; the minor children have now acclimated to moving between two households; and the divorced former spouses’ financial rights and obligations to each other have long been finalized and implemented.  Then one day, a letter arrives in the mailbox at the former marital residence, enclosing an account statement for a work-related retirement account belonging to your  ex-husband, which appears to have been accrued during the time of your 20-year marriage.  The only problem is that the retirement interest was unknown to you or your lawyer, and was not divided or otherwise addressed in the divorce proceeding.  So, what can be done?


Excluding the possibility of fraud (an extremely flagrant circumstance which has its own set of remedies), it is not unheard of for marital assets to be inadvertently forgotten and “omitted” from disposition in divorce proceedings.  These types of omitted assets run the gamut, from a small but exceedingly valuable coin collection, to a long-ignored military pension, to a neglected brokerage account.  Omitted assets are often unearthed years after the end of a divorce, and sometimes after having increased substantially in value. Fortunately, a long-standing Nevada legal protocol is in place to equitably divide these assets if and when they are discovered.


As to omitted assets in Nevada, it is clear that a Decree of Divorce does not constitute a full and final adjudication where the subject property was not (or could not have been) litigated in court.  In Nevada, community property that is left unadjudicated and undisposed of on divorce as a result of mutual mistake is always subject to subsequent partition in a separate, independent equitable action.  In such situations, the omitted property is beneficially held by the parties as tenants in common until such time as it is partitioned.  In fact, this legal authority is so widely recognized by astute family law practitioners that omitted asset partition actions in Nevada are routinely referred to as “Amie” actions.



Marijuana and Child Custody


The momentum allowing the use of recreational marijuana is increasing steadily as states, including Nevada, see the attractive tax revenue.  Parents using marijuana, medical or otherwise, may have a false sense of security.  Legalized marijuana or having a prescription for medical marijuana does not give a parent a “free pass” to use the drug.  This warning is nothing new.  The fact that marijuana has been made “legal” does not change the fact that it is a drug, just like alcohol or prescribed medication.  If marijuana affects a person’s parenting or negatively impacts the best interests of a child, it could have adverse consequences in family court.  Some family court judges have not considered  marijuana use as serious as meth or cocaine, even before the states started liberalizing its use.  Marijuana may be used responsibly, or abused, like any other drug.  The bottom line, however, is that as far as custody litigation, the only difference in the use of marijuana is that the use itself is not “illegal.”  As far as determining whether or not the use hinders a parent’s ability to care for a child, however, does not hinge on whether the drug is legal or illegal.  That issue is, and has always been, the same.


Allegations of drug use, particularly marijuana, have been common in child custody battles for a long time.  Even before the recent decriminalization and use of medical marijuana, different family court judges had difference tolerances for use of the drug.  Some would take the position it is an illegal drug and therefore come down on the offender, while others simply did not take it as seriously as drugs such as cocaine or methamphetamine.  After all, often both parents would smoke marijuana during marriage and the party that decided to divorce first would stop and sometimes be able to catch their spouse with a dirty test.  In other situations, maybe only one parent indulged, but the other parent did not think it was a “big deal” and did not believe it hindered their spouses to care for the children.  Once the decision to divorce has been made, however, suddenly the drug is dangerous, and the smoking parent becomes a risk.


Parents who indulged in the drug believe that with the news laws in place, they have a “free pass” to indulge at their whim.  This simply is not true.  The drug is illegal under federal law and most states simply do not know how they are going to handle the new laws.  Predicting what may happen with marijuana laws and enforcement is both speculative and risky.  As a practical matter, the change in laws will probably have no impact on custody litigation.  Legal marijuana is not different from alcohol.  Alcohol is legal, but if there is an addiction or its use hinders a parent’s ability to care for their child, it will influence a judge in custody litigation.  So while there may be a relaxation toward the illegality of marijuana, as far a judge in custody litigation is concerned, the issues are the same.




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