Prenuptial Agreements

Definition, Purpose and Legality of Prenuptial Agreements

A prenuptial agreement (also known as a pre-marriage agreement or antenuptial agreement) is a written contract between a prospective husband and wife which sets out each party’s rights/obligations during the marriage and in the event of divorce or death.

“The first thing a person considering a prenuptial agreement should do is contact a New Hampshire lawyer. There are just too many potential legal pitfalls for the layperson to safely nagivate this area of the law.”

Prenuptial agreements can be used for almost any legal purpose: to protect property, provide for children of a previous marriage, or limit/change spousal support obligations in the event of divorce or death. Because of this, they are an important estate planning tool.

Prenuptial agreements are legal in New Hampshire, subject to two important caveats.

“Fairness” Caveat in Prenuptial Agreements

The first caveat is that New Hampshire law requires that a prenuptial agreement be fair both in terms of how it was entered into, and the provisions it contains. “Fair” for the purposes of prenuptial agreements means that one party did not use fraud, force, or nondisclosure/misrepresentation of important facts to induce the other party to sign the agreement.

“Fair” also means that while a prenuptial agreement can give one party substantially more/less than he/she would receive under state law, it cannot leave one party as a virtual public charge.

“Unconscionable Hardship” Caveat in Prenuptial Agreements

The second caveat is that even if the negotiation of, and provisions in, a prenuptial agreement were absolutely fair when the agreement was entered into, it may still be invalidated by a court at a later time.

A court can invalidate the agreement if factual circumstances have changed so much since the parties entered into the agreement that to enforce the agreement would work an unconscionable hardship on one of the parties.