Updated January 23, 2023
A New Hampshire postnuptial agreement is a legal document that sets out the rights and obligations of the spouses in a marriage should the marriage end in divorce or death. This is similar to a prenuptial agreement, commonly called a “prenup,” except that a married couple signs it after they’ve married instead of before. Postnuptial agreements can be valuable estate planning tools because they typically precede a state’s property distribution laws in divorce proceedings.
Laws
Scrutiny: Postnuptial agreements are presumed to be valid but scrutinized more closely than contracts unrelated to marriage. In re Estate of Wilber (N.H. 2013).
Fairness: Because of the fiduciary nature of the marital relationship, the parties in a postnuptial agreement must exercise the highest degree of good faith, candor, and sincerity, with fairness being the ultimate measure of the agreement. In re Estate of Wilber (N.H. 2013).
Enforceability: The party arguing not to enforce a postnuptial agreement must prove:
- The agreement was obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of a material fact;
- The agreement is unconscionable; or
- The facts and circumstances have changed since the agreement was executed to make the agreement unenforceable.