What is a Prenuptial Agreement?
A prenuptial agreement is nothing more than a contract between two spouses who agree to accept the terms of the agreement in exchange for entering into marriage. Prenuptial agreements are also known as a pre-nup, premarital, antenuptial, or pre-marital, agreements.
New Hampshire courts, and generally all US courts, give extra scrutiny to prenuptial agreements. The law on prenuptial agreements is still evolving and many times these agreements are invalidated during a divorce or after a death. You should consider a prenuptial agreement as a good tool to protect your assets in divorce, however, you should also be aware that the validity of any prenuptial agreement will likely be contested in divorce.
What Prenuptial Agreements CAN and CAN'T do
- Control the division of assets after death/divorce
- Protect assets like cash, stocks, bonds, and a business interest
- Alter the "rules" of divorce and take priority over some NH laws
- Prevent or limit child support in any way
- Be entered into as a result of pressure of undue influence by the other spouse
- Be completely one sided and leave the other spouse destitute in the event of divorce
Do I Need a Lawyer to Draft a Prenuptial Agreement?
The short answer is absolutely 100% yes you need an attorney to draft a prenuptial agreement. I have no problem advising my clients to handle certain issues themselves to save money. A prenuptial agreement is not one of those issues. That law that surrounds prenuptial agreements is very complex and requires that the document have very specific terms. Any small mistake or the inclusion/exclusion of a particular clause can make the entire agreement unenforceable. Even prenuptial agreements written by attorneys ends up unenforceable all the time. This is not a task you should consider doing yourself.
What are the Requirements to Create a Prenuptial Agreement?
The New Hampshire statute that authorizes prenuptial agreements only states that the agreement cannot alter the laws relating to child support or child custody. Several New Hampshire cases have looked a what a valid prenuptial agreement requires and has found the following:
- Writing: The prenuptial agreement must be in writing, signed by both parties, and signed by a witness.
- Voluntary Acceptance: Both parties must voluntarily accept the agreement.
- Duress or Pressure to Sign: Neither party may unduly influence the other party to induce a signature.
- Time: The longer the time between when the prenuptial agreement is signed and when the marriage occurs the better. You should consider having the agreement drawn up at least 3-6 months prior to the marriage.
- Full Disclosure of Financial Assets: Full Disclosure of Financial Assets: Each spouse must fully disclose every single asset that they own. Failure to even disclose a single small asset could invalidate the entire agreement. Each party should have a complete picture of the other parties finances.
- Independent Representation by Counsel: The attorney who drafts a prenuptial agreement will only represent one party. The attorney will be drafting the agreement at the direction and with the interests of his or her client. While not a requirement, many courts like to see that the other spouse had their own independent attorney review and advise the spouse on the contents and meaning of the agreement.
- Fair Provisions: The agreement cannot be so one sided that it leaves the other party destitute in the event of divorce.
The Law of Prenuptial Agreements
New Hampshire law relating to prenuptial agreements is constantly evolving. This is a mere overview and snapshot of the law as of May, 2014.
Statutory Authority - RSA 460:2-a. Antenuptial Agreements.
A man and woman in contemplation of marriage may enter into a written interspousal contract and the courts of this state shall give the same effect to such contracts entered in other jurisdictions as would the courts of that other jurisdiction. However, no contract otherwise enforceable under this section may contain any term which attempts to abrogate the statutory or common law rights of minor children of the contemplated marriage.
RSA 460:2-a. Antenuptial Agreements.
Relevant Case Law
McFarlane v. Rich, 132 N.H. 608, 567 A.2d 585 (1989) - Established the standard for determining if a prenuptial agreement is fair.
Parkhurst v. Gibson, 133 N.H. 57, 573 A.2d 454 (1990) - Suggested that a party may not fully understand the agreement without the presence of independent counsel.
Wheaton-Dunberger v. Dunberger, 137 N.H. 504 (1993) - Only signatories to the agreement can be bound by it.