The use of a prenuptial agreement (defined in New Hampshire as an agreement “wherein a man and a woman in contemplation of marriage may enter into an inter-spousal contract”) can be a polarizing topic with many people viewing these agreements as unromantic and cold. The familiar refrain is “Why would someone contemplate divorce even before the marriage occurs?” While negative views of prenuptial agreements are understandable to a degree the use of prenuptial agreements is on the rise (especially prenuptial agreements requested by women).
Prenuptial agreements are most often requested when one party has been married before and is looking to protect their assets for the eventual inheritance benefits of their children or is looking to protect a family business interest, a significant asset such as a primary or vacation home, or a future inheritance.
New Hampshire statutory law permits prenuptial agreements but does not guarantee that prenuptial agreements will be upheld upon a later challenge. The analysis of whether, and to what extent, a prenuptial agreement will be upheld is left to the individual cases that have been adjudicated in the New Hampshire courts.
There is no monetary consideration required for the prenuptial agreement to be valid. The consideration exchanged is the expectation that the parties will eventually be married, and the fact that they actually do. The “totality of the circumstances” surrounding how the prenuptial contact was obtained must indicate that neither of the parties acted in “bad faith”.
The prenuptial agreement is presumed to be vaild, unless the party who claims that the prenuptial agreement is invalid proves at least one of the three (3) following circumstances have occurred:
1. The prenuptial agreement was obtained by fraud, duress, mistake or misrepresentation/nondisclosure of a material fact; or
2. The prenuptial agreement was unconscionable; or
3. Since the time the couple executed the prenuptial agreement, facts and circumstances have changed to make the agreement unenforceable.
Couples entering into a prenuptial agreement are held to a high standard by New Hampshire courts due to their confidential relationship and must exercise the high degree of good faith and candor in the process including a full and complete disclosure of each party’s finances and assets.
If you’re interested in talking with the attorneys at Welts, White & Fontaine PC about estate planning, including wills and trusts, including the use of prenuptial agreements to support your estate plan, business matters, including, ownership transfers and buy sell agreements, please contact us by clicking here or by calling (603) 883-0797. Welts, White & Fontaine is one of Nashua’s largest, multi-practice law firms and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and, of course, Nashua.
Author: John Polgrean
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.