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Copperlaw
Copperlaw, Lawyer
Category: Canada Family Law
Satisfied Customers: 2012
Experience:  Barrister and Solicitor Retired cop Crisis Negotiator Drug Expert
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Its me from the USA, the one from a way back with the

Customer Question

For CopperLaw only...its me from the USA, the one from a way back with the post-nup issues...I hope you can remember...I'm from Las Vegas...the post-nup was drafted and signed in Saskatchewan... Well we are still in court here in the USA over this mess. We are at the point of who has the "burden of proof" when trying to enforce this foreign document in a USA court... Do you know or is there any case law about who bears the burden of proof of the documents vaildity in such an instance? I mean it's the opposing sides document and due to Saskatchewans residency requirements we couldn't even debate it there if we wanted to because upon signing even then, we intended to live in Las Vegas, NV... The document says we are to use Saskatchewan law though... So there is still uncertainty.please help. Thank you!
Submitted: 10 months ago.
Category: Canada Family Law
Expert:  Copperlaw replied 10 months ago.

Hey, of course I remember! How are you?

If NV law entitles you to support and an interest in matrimonial property, as Saskatchewan does, then you start on the assumption that this entitlement exists and is in your favour.

If he is then trying to remove this entitlement, then the onus is on him to prove that the post-nup excludes you.

I can't think of any case law offhand and I don't have access to NV case law, however it is basic law that you start with what the law says and if someone seeks to override that, then they have the obligation to satisfy the court that grounds exist to deviate from the rules or law on the subject.

If the law says you have an entitlement, you need not prove your entitlement. If he wants to claim that you do not have the entitlement provided for in law, then he has the burden of proof to satisfy the judge that the law does not apply in this circumstance.

This should be clear to the judge. I can't imagine why they would have an issue understanding this.

If he argues that the post-nup should exclude you from any entitlement, then you would then want to provide argument as to why it doesn't, starting with the fact that the law provides the entitlement. Then you'd discuss the manner in which it was obtained.

Hope this helps.

Jim

Customer: replied 10 months ago.
Hey there Jim! Glad to hear from you! Another attorney online informed me of a few things
Customer: replied 10 months ago.
Cont'd
Customer: replied 10 months ago.
Continued
Customer: replied 10 months ago.
by the way here is that piece of crap document... I finally figured out how to use Dropbox. I read all of LeVan v LeVan (Canada divorce case with interspousal issue almost exactly like my case!!). Talk about duress...when signing....she at least had 6 weeks (judge set it aside). I had one day to sign.
Expert:  Copperlaw replied 10 months ago.

I know eh? The situation they put you in was absolutely ridiculous and there's no way that any court would look at that as fair or reasonable and most certainly would question whether it was voluntary or informed.

That information you got seems to be a great support. While NV law seems to acknowledge premarital contracts, it seems to recognize the lack of fairness often found in post-nups. When one looks at it realistically, unless both individuals were each financially stable and well off, why would anyone agree to throw away their rights to a fair distribution of property.

Customer: replied 10 months ago.
Exactly...duress...undue influence ... Just curious did you agree with that statutes interpretation I sent?
Expert:  Copperlaw replied 10 months ago.

On reading the statute, it appears to acknowledge a lawful and binding pre-nup, but not a post-nup and certainly not one signed outside of NV so as to try to circumvent NV law on the matter.

Customer: replied 10 months ago.
Ok I see... Yes, I was noticing that there isn't much regarding post-nups in NV...so I'm under the assumption that to a certain degree, what legislation there is on agreements in similarity is used until further precedent is set. So I'm assuming in essence to further the invalidity of that document is the Choice of laws clause is voidable...but first things first it was never initially made to be an authorized document in the US courts as of now. I can't imagine the judge delaying this any further to all that to happen.

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