Prenuptial and Postnuptial Agreements

Prenuptial Agreements are agreements made between parties before they marry about what will happen after they marry. A postnuptial agreement is one made after the marriage.  Most often, prenuptial or postnuptial agreements specify what may happen if the parties divorce or when one of the parties dies. Often, they contain provision about how the parties will keep things separate from what they are willing to combine as a divisible, marital asset.

“Prenuptial and Postnuptial Agreements should have advice of attorneys for each party to be valid. “

New Hampshire law has long recognized prenuptial agreements entered into in New Hampshire or in other states. The courts did not recognize the validity of postnuptial agreements until a case decided in 2013.   The state’s divorce law for the division of property will enforce valid prenuptial or postnuptial contracts made in good faith by the parties.  Such agreements cannot restrict or prevent orders for for child support. New Hampshire case law provides that an otherwise valid prenuptial or postnuptial agreement can be set aside in a divorce if the provisions of the agreement would yield an “unconscionable result.” Prenuptial contracts are an effective way for parties who are marrying to assure that property owned before the marriage or large amounts of wealth remain with that spouse if death or divorce occurs.

New Hampshire’s laws of inheritance upon death provide specific provisions made for the surviving spouse. A valid prenuptial or postnuptial agreement is the only way in which the surviving spouse can be prevented from claiming his or her minimum spousal share of the decedent’s estate.

Prenuptial and postnuptial contracts are carefully scrutinized both in marital courts and probate courts. Very special attention is given that the agreement was fair when made, was made with full knowledge and disclosures by both parties to the marriage, and without any undue pressure or fraud involved. Prenuptial and postnuptial agreements should always be made with both parties having separate legal counsel if the agreement is be honored. Increasingly more and more lawyers will not represent one party to a prenuptial or postnuptial contract unless the other side has separate legal counsel as well because of the scrutiny courts apply to the contract.

If you are thinking of a prenuptial or postnuptial agreement, contact us.  We can help you come to the best agreement with your spouse that is fair to both of you.