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Prenuptial Agreements: A Comprehensive Guide for All Couples

Learn everything you need to know about prenuptial agreements, how they protect your assets, and why they're valuable for couples with children, young couples, blended families, and those with significant assets.

Introduction

A prenuptial agreement (commonly called a 'prenup') is a legal contract created by two people before they marry that typically outlines how assets and debts will be divided in the event of divorce or death. While often associated with wealthy individuals protecting their fortunes, prenups serve many practical purposes for couples across various life situations. This document can help clarify financial rights and responsibilities, protect family businesses, shield one spouse from the other's debts, and establish clear guidelines for property division. Whether you're entering marriage with children from previous relationships, significant assets, or simply want clarity about your financial future together, understanding prenuptial agreements is an important step in building a secure foundation for your marriage.

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Key Things to Know

  1. 1

    Prenuptial agreements must be executed well before the wedding (at least 30 days is recommended) to avoid claims of coercion or duress.

  2. 2

    Both parties must provide complete and honest financial disclosure for the agreement to be valid.

  3. 3

    Each person should have their own independent legal counsel review the agreement before signing.

  4. 4

    Prenups cannot determine child custody or child support amounts, as these must be decided based on the best interests of the child at the time of divorce.

  5. 5

    The agreement should be reviewed and potentially updated after major life events such as the birth of children, significant inheritance, or substantial changes in financial circumstances.

  6. 6

    State laws vary regarding prenuptial agreements, so it's essential to work with an attorney familiar with the laws in your jurisdiction.

  7. 7

    A well-crafted prenup promotes financial transparency and communication, which can strengthen your relationship rather than undermine it.

  8. 8

    For blended families, a prenuptial agreement should work in conjunction with your estate plan to ensure children from previous relationships are protected.

Key decisions before you file

Before you file a Prenuptial Agreement in New Hampshire, a few decisions shape the document: which option to choose and what each one means. The Prenuptial Agreement guide walks through them.

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New Hampshire Requirements for Prenuptial Agreement

  • Voluntary Execution (New Hampshire RSA 460:2-a)

    The agreement must be entered into voluntarily by both parties, without coercion, duress, or undue influence. Each party must sign the agreement of their own free will.

  • Full and Fair Disclosure (New Hampshire RSA 460:2-a; In re Estate of Wilber, 165 N.H. 246 (2013))

    Both parties must provide complete and accurate disclosure of their assets, liabilities, and income prior to execution of the agreement. Failure to disclose material information may render the agreement unenforceable.

  • Opportunity for Independent Legal Counsel (New Hampshire RSA 460:2-a; In re Yannalfo, 147 N.H. 597 (2002))

    Each party must have reasonable opportunity to consult with independent legal counsel of their own choosing before signing the agreement. It is advisable that each party be represented by separate counsel.

  • Unconscionability Provision (New Hampshire RSA 460:2-a; In re Estate of Wilber, 165 N.H. 246 (2013))

    The agreement must not be unconscionable at the time of execution or enforcement. Courts may refuse to enforce provisions that are grossly unfair or one-sided.

  • Execution Timing (New Hampshire common law; In re Yannalfo, 147 N.H. 597 (2002))

    The agreement should be executed well in advance of the wedding date, preferably at least 30 days prior, to avoid claims of duress or coercion. Last-minute agreements may be scrutinized more closely by courts.

  • Property Division (New Hampshire RSA 458:16-a)

    Clear identification and classification of separate property (owned before marriage or acquired by gift/inheritance) and marital property, with provisions for how each will be treated upon divorce or death.

  • Alimony/Spousal Support (New Hampshire RSA 458:19; In re Nizhnikov, 168 N.H. 525 (2016))

    Provisions regarding waiver, limitation, or specification of alimony terms. New Hampshire law allows parties to address future spousal support in prenuptial agreements, but courts may review for fairness at the time of enforcement.

  • Retirement Benefits (Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.)

    Provisions addressing division of retirement accounts, pensions, and other retirement benefits, with acknowledgment of federal ERISA requirements for qualified retirement plans.

  • Estate Planning Provisions (New Hampshire RSA 560:10)

    Provisions addressing inheritance rights, including potential waiver of elective share rights that would otherwise be available to a surviving spouse under New Hampshire law.

  • Debts and Liabilities (New Hampshire RSA 460:2-a)

    Provisions addressing responsibility for debts brought into the marriage and those incurred during marriage, including potential protection from a spouse's separate debts.

  • Business Interests (New Hampshire RSA 460:2-a; New Hampshire RSA 458:16-a)

    Provisions protecting business interests, including ownership, valuation methods, and management rights for businesses owned prior to or acquired during marriage.

  • Child Support and Custody (New Hampshire RSA 458-C; In re Nicholson, 172 N.H. 570 (2019))

    Acknowledgment that child support and custody matters cannot be predetermined in a prenuptial agreement as they remain subject to court determination based on the best interests of the child at the time of divorce.

  • Choice of Law (New Hampshire common law; Restatement (Second) of Conflict of Laws § 187)

    Specification of which state's laws will govern the interpretation and enforcement of the agreement, particularly important if the couple may relocate or has connections to multiple states.

  • Sunset Provisions (New Hampshire RSA 460:2-a)

    Optional provisions specifying that certain terms expire or change after a specified duration of marriage or upon certain events (such as the birth of children).

  • Modification and Amendment (New Hampshire RSA 460:2-a)

    Provisions outlining the process for modifying the agreement after marriage, requiring that any modifications be in writing and signed by both parties with the same formalities as the original agreement.

  • Severability (New Hampshire common law)

    Provision stating that if any portion of the agreement is found to be invalid or unenforceable, the remainder of the agreement shall continue in full force and effect to the extent permitted by law.

  • Tax Considerations (Internal Revenue Code, 26 U.S.C. § 1 et seq.)

    Provisions addressing tax filing status, allocation of tax benefits, and other tax considerations, with acknowledgment that tax laws may change and impact the agreement's provisions.

  • Life Insurance Requirements (New Hampshire RSA 460:2-a)

    Provisions requiring the maintenance of life insurance policies with specified beneficiaries to ensure financial security in the event of death.

  • Financial Support During Marriage (New Hampshire RSA 460:2-a)

    Provisions outlining financial responsibilities and support obligations during the marriage, including potential requirements for joint or separate accounts.

  • Marital Residence (New Hampshire RSA 458:16-a)

    Provisions specifically addressing ownership, use, and disposition of the marital residence in the event of divorce or death.

Frequently Asked Questions

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