Congratulations on your pending nuptials! We are just as excited as you are about your pending marriage, however, we are also here to provide you with the insight and advice you need to protect not only your interests, but those of your current and future family.
The thought of divorce is the furthest thing from most people’s minds when they are preparing for the big day and rightfully so. However, much like how one may obtain medical insurance despite not anticipating an injury, it is prudent to have a plan in place in the event of a breakdown of your marital relationship. One way to decrease the likelihood and costs of litigation in the event of a divorce is to enter into a Prenuptial Agreement.
A Prenuptial Agreement is a legal contract between two parties regarding marital rights and responsibilities. The individuals essentially accept the terms of the agreement in exchange for entering into marriage. It is sometimes called a “Premarital Agreement.” A Post-Nuptial Agreement is the same type of contract, only the parties do not execute it until after they are married.
These contracts are used to specify what will happen in the event of divorce or the death of one party. The marital rights and responsibilities outlined within a Prenuptial Agreement can include the right to real property, retirement accounts, and more. Prenuptial Agreements cannot, however, dictate parenting issues or child support, because in the State of New Hampshire the best interests of the child will always take precedent. Prenuptial agreements must be in writing, entered into voluntarily, include a full disclosure of assets, and cannot be “excessively” unfair.
A Premarital Agreement must generally be executed at least thirty (30) days in advance of the date of the marriage, while a Post-Nuptial Agreement does not have a specified time limit.
The State of New Hampshire does recognize and abide by the terms of a Prenuptial Agreement, provided the agreement is valid and entered into in good faith. Prenuptial Agreements must be comprehensive, detailed, disclose the assets of the parties, and be executed and notarized by both parties and their witnesses.
A Court can rule that a Prenuptial Agreement is invalid if any of the following existed at the time the Agreement was signed:
Undue Duress or Heavy Influence: In order to avoid a claim that a party signed under duress, it is important to execute the Agreement well in advance of the wedding. Both parties must be given ample time and opportunity to read and understand the Agreement. Both parties should also be given the time to review the Agreement with an attorney of their own choosing.
Fraud: Misleading a party or lying about material information, such as assets or income, can cause the Agreement to be held invalid.
The agreement is unconscionable or unfair: These definitions can vary from case to case based upon the facts and circumstances.
A Postnuptial Agreement covers the same topic areas of a Prenuptial Agreement. The only difference is that it is executed after the parties are already married.
Postnuptial Agreements are held to be valid in the State of New Hampshire. At minimum, they must survive the same level of scrutiny that a Prenuptial Agreement must survive. As such, the factors listed above are also used to determine whether a Postnuptial Agreement is invalid.
Each party is required to be represented by individual counsel when entering into a pre- or post-marital agreement for it to be valid. This is to eliminate any claim by one of the party’s that they did not understand or otherwise comprehend the terms of the agreement. Representation of both parties by an attorney is also needed to ensure that each party is fully informed of their rights under the laws of the State of New Hampshire prior to entering into an agreement which may limit or eliminate those rights. This is extremely important, since failure of one party to have independent legal representation can and will allow that party to challenge the agreement if there is a divorce.
Whether you would like to present your soon to be spouse or current spouse with a Pre- or Postnuptial Agreement or if you have been presented with a document and asked to “sign here”, the Law Office of Shaunna L. Browne, PLLC is ready and able to fully represent your interests with the highest level of professionalism, understanding and courtesy. Regardless of your situation, our office is ready and able to assist you with all of your family law needs, prior to, during and after your marriage.