Q. I know a Prenuptial Agreements is signed before the wedding, but what
does a Prenuptial Agreement do?
A. A Prenuptial Agreement lays out what will happen to your and your spouse’s
assets and income in the event of divorce, separation or death.
Q. Do I really need one if I’m not wealthy?
A. It depends. If you have family assets, like a summer home or a family
business that you would like to protect, it would make sense to do that
in a Prenuptial Agreement.
If by the time you are getting married you have pursued a career that has
enabled you to accumulate assets, be it real estate, stocks, savings accounts,
retirement accounts or other investments, you may want to ensure those
assets are protected in a Prenuptial Agreement.
If you have children from a prior relationship or marriage, you may want
to secure for the child/children certain assets you own prior to the upcoming marriage.
If your future spouse has debt, such as college, medical school or law
school loans, or business loans or other debt, a Prenuptial Agreement
can ensure that you will not be responsible for this debt in the event
the marriage ends.
Q. Does a Prenuptial Agreement have to be fair?
A. In New Hampshire a Prenuptial Agreement is presumed to be valid; however,
if at the time the Agreement is entered into the provisions of the agreement
are so unreasonable that they rise to the level of being unconscionable,
the Prenuptial Agreement will not be enforceable. Also, even if a Prenuptial
Agreement is valid at the time of signing, over time circumstances may
change so much from when the agreement is originally signed, as to render
the agreement unenforceable. For example, if a Prenuptial Agreement awards
a business to a spouse, during the 25 year marriage the other spouse works
in that business and those efforts substantially increase the value of
that business and the parties have 5 children, the circumstance of the
parties can be deemed substantially changed sufficient to render the Prenuptial
Q. Are there things that need to be done before the Prenuptial Agreement
A. Each party must disclose his/her assets and income. The more complete
and truthful the disclosure, accompanied by supporting documentation,
the better. This important step mitigates against a Prenuptial Agreement
being rendered unenforceable due to fraud, mistake, and/or misrepresentation
or nondisclosure of a material fact.
Both parties need to have a sufficient amount of time to consult with counsel,
accountants and other professionals if they so desire. This means a draft
of the Prenuptial Agreement should be provided to your intended well before
the wedding date. The earlier the draft is provided, the greater the likelihood
of its enforcement down the road. When the final form is signed by the
parties, both parties should have a very good understanding of what the
agreement provides, and what the assets, liabilities and income of both
parties are. While having the opportunity to consult with counsel is absolutely
necessary, it is worth the expense of ensuring the other party actually
is represented by independent, competent counsel.
Another reason for having the parties sign a Prenuptial Agreement as long
before the wedding date as possible is to eliminate even the appearance
of duress. A claim that a person was under duress when he/she signed a
Prenuptial Agreement is less convincing if it is signed 90 days before
the wedding instead of 1 or 2 days before the wedding after the guests
have been invited and wedding expenses have been incurred.
Q. Is it possible to have a Prenuptial Agreement prepared that is absolutely
bulletproof, i.e., that will always be enforced, no matter what?
A. No, because there is no way to prevent the occurrence of changed circumstances
that are so far beyond the contemplation of the parties when they signed
the Prenuptial Agreement that its present application to a spouse would
be so one-sided that its enforcement would be unconscionable which is
the standard in determining whether a Prenuptial Agreement is not enforceable.
Q. Why can’t the Prenuptial Agreement state that if during the marriage
the parties have children the agreement still applies or the agreement
applies even if the parties are married for 30 or more years?
A. There are public policy considerations that come into play with Prenuptial
Agreements. An agreement that is more thoughtful toward fairness in the
future, for example, an agreement that provides for larger amounts of
alimony and/or longer periods of alimony the longer the marriage, has
a better chance of being enforced than one that is not.
Q. Given the possibility that a Prenuptial Agreement may be unenforceable,
is it even worth the time, effort and expense to have one done?
A. If you want to protect certain assets, provide for children from a prior
marriage or relationship and avoid the uncertainties inherent in litigation,
then the answer is yes, with the emphasis being on time and effort to
make sure it is done right. Allow for a sufficient amount of time well
in advance of the wedding date to have your attorney prepare the document,
provide complete and full disclosure of your assets, liabilities and finances,
share it with your intended, allow him/her to review it with an attorney
and provide you with a complete disclosure of his/her assets, liabilities
and finances, and for you both to sign the agreement with each party’s
A well thought out Prenuptial Agreement properly prepared is the best way
to plan for the future, even with its uncertainties.