Same Sex Marital Agreements

Effective January 1, 2008, New Hampshire recognized the civil union of same-sex couples. On January 1, 2010, New Hampshire changed the definition of marriage to include same-sex couples and repealed the civil union law. This being so, gay and lesbian couples should give serious consideration to a same-sex marital agreement. A same-sex marital agreement functions in exactly the same way as a prenuptial agreement.

“New Hampshire’s recognition of gay marriage has fundamentally changed the legal rights and obligations of same-sex couples. Gone are old assumptions about mine, yours, and ours.”

Definition, Purpose and Legality of Same-Sex Marital Agreements

A same-sex marital agreement is a written contract between two prospective spouses which sets out each each person’s rights/obligations during the marriage and in the event of divorce or death.

Like prenuptial agreements, same-sex maritial 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 also an important estate planning tool.

Same-sex marital agreements are legal in New Hampshire, subject to two important caveats.

“Fairness” Caveat in Same-Sex Marital Agreements

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

“Fair” also means that while a same-sex marital 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 Same-Sex Marital Agreements

The second cavet is that even if the negotiation of, and provisions in, a same-sex marital 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.

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