Prenuptial Agreements in New Hampshire

An overview of prenuptial agreements in New Hampshire.

By , Attorney · Brigham Young University J. Reuben Clark Law School

If you think prenuptial agreements are only for the very rich or very famous, think again. Prenups are more common than ever. Many couples today use premarital agreements to outline financial responsibilities during marriage and property division in case of death or divorce.

Every state's rules regarding prenuptial agreements are a little bit different. It's important to familiarize yourself with your state's requirements before signing a prenuptial agreement. This article provides an overview of premarital agreements in New Hampshire. If after reading this article you have questions, please contact a local family law attorney for advice.

What is a Prenuptial Agreement?

A "prenuptial agreement", sometimes called a "premarital agreement" or "antenuptial agreement", is a contract between potential spouses regarding marital rights and responsibilities. An antenuptial agreement must be agreed upon and signed by the future spouses prior to their marriage. The premarital agreement isn't enforceable if a couple doesn't put their agreement in writing or if the couple never marries.

Who Should Get a Prenuptial Agreement?

A prenuptial agreement is a good idea even for couples that think they'll never divorce. Antenuptial agreements come in all shapes and sizes to fit the needs and wants of a couple. An individual with limited assets may want a prenuptial agreement to protect his or her limited savings or to preserve a child's inheritance. Alternatively, a very wealthy individual may use an agreement to decrease his or her tax liabilities or to separate a family fortune from a future spouse. In each circumstance, a prenuptial agreement can lead to fewer arguments during marriage and will greatly simplify property division in a divorce.

Marriage can complicate property ownership rights. Generally, if a spouse enters a marriage with separate property, his or her property will remain separate even in the event of divorce. Nevertheless, a spouse who contributes to the value of the other's separate property may be entitled to that property upon the other's death or if the couple divorces. A prenuptial agreement defines property rights and may eliminate confusion or arguments about who owns what. In any case, a prenup allows a couple to control how their property is divided. Without one, property division in the event of death or divorce is left up to a judge to decide.

What Does a Prenuptial Agreement Cover?

Prenuptial agreements are as varied as the couples that enter into them. Nevertheless, most prenuptial agreements resolve one or more of the following issues:

  • each spouse's right to property acquired before or during the marriage
  • property division in the event of death or divorce
  • each spouse's right to buy, lease, sell or transfer or otherwise control property
  • each spouse's right to alimony, including the amount and duration of an alimony award
  • each spouse's entitlement to death benefits from the other's life insurance policy
  • the state law which governs the agreement, and
  • any other issues on which the couple agrees.

Premarital contracts can resolve most issues that would be decided during a divorce, but they can't resolve everything. Specifically, a prenup can't require one spouse to commit an illegal act. Moreover, spouses cannot resolve issues regarding their children in a prenuptial agreement.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in New Hampshire?

Parents can't resolve issues of childcare and child support in a premarital contract. A judge will make the final decision on child custody or child support. A child's best interests are central to any custody decision and those interests will always override the wants or needs of the child's parents.

Every child has a right to financial support from his or her parents. Thus, parents can't decide child support as part of a prenuptial agreement. A judge will assess a child's best interests and financial needs as part of a custody proceeding. If parents attempt to resolve child support or custody in a prenup, a judge will simply ignore their agreement.

Will a New Hampshire Court Enforce My Prenuptial Agreement?

New Hampshire is one of a handful of states that hasn't adopted the Uniform Prenuptial Agreement Act (UPAA). Rather, New Hampshire state law regulates prenuptial agreements.

Like any contract, a prenuptial agreement must be in writing and signed by both spouses-to-be. An agreement only goes into effect once the couple marries. If a couple cancels their wedding, or marries but the marriage is declared void, the prenuptial contract won't be enforced.

A prenuptial agreement is binding on the spouses unless one spouse proves that:

  • the agreement was obtained through fraud
  • one spouse signed the agreement under duress
  • one spouse misrepresented or failed to disclose a material fact
  • the agreement is unconscionable or severely unfair, or
  • the facts and circumstances surrounding the agreement have changed so drastically since the agreement was signed, that it is unenforceable.

Whether an agreement was signed voluntarily is an issue of fact evaluated on a case-by-case basis. For example, in one New Hampshire case, the court found that the wife signed a premarital agreement voluntarily because she was presented the agreement 24 hours before the wedding and had sufficient time to consult with an attorney. Alternatively, in another case, the court found that the wife signed a prenuptial agreement under duress even though she was given the agreement 48 hours before the wedding. The court ruled differently in this case because of the wife's age (she was 22 and the husband was 52) and the husband's multi-million dollar wealth.

A prenuptial agreement can terminate a spouse's right to alimony and still be upheld. Nevertheless, an agreement may be found unconscionable if it terminates alimony and leaves a needy spouse destitute or dependent on state assistance. If an agreement is found to be unconscionable, the unfair portions of the agreement or the entire agreement may be overturned.

Even seemingly basic prenuptial agreements can be complicated to understand. Moreover, the rules governing prenuptial agreements in New Hampshire are complex. If you're considering signing a prenuptial agreement or have additional questions regarding agreements in New Hampshire, contact a local family law attorney for advice.

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