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Important Prenuptial Agreement Questions To Ask

Happy couple signing prenuptial agreement in attorney’s informal office

Many people are confused about prenuptial agreements, including what they are, when they should use one, and what to include in one. If you are contemplating a prenuptial agreement, consider contacting a knowledgeable family law attorney from Friedman & Bresaw, PLLC. An experienced New Hampshire prenuptial agreement lawyer may be able to answer your questions during a confidential consultation you can arrange by calling (603) 707-4800.

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract that two people make in contemplation of marriage. The agreement sets out important financial details before the two become legally entangled. The contract becomes effective once the marriage has been legally completed and filed, after which point the prenuptial agreement can provide a roadmap regarding what happens to the couple’s property if their marriage does not work out. 

Why Should I Consider a Prenuptial Agreement?

Despite popular opinion, prenuptial agreements are not only for the wealthy. They are for anyone who has property they want to protect, including future property they may acquire. Some of the people who stand to potentially benefit from a prenuptial agreement include:

  • People who have received or anticipate receiving a substantial inheritance 
  • Parents who have children from a previous relationship who want to protect their children’s financial interests
  • Business owners
  • People who have separate property they want to protect

Absent a prenuptial agreement, New Hampshire courts presume that all property a couple acquired during the marriage is marital property and subject to division under § 458:16-a NH Rev. Stat. However, § 460:2-a states that a couple can enter into a prenuptial agreement and the court can enforce this contract. Therefore, a prenuptial agreement allows a couple to decide how their property will be treated if they divorce, rather than having the court decide how to divide it.

What Are the Key Points of a Prenuptial Agreement?

Prenuptial agreements are personalized contracts. Therefore, they contain information that is specific to each person and situation. Some of the key points often included in prenuptial agreements include provisions about:

  • What is each spouse’s separate property 
  • How property will be divided if the couple divorces
  • How an inheritance will be treated 
  • What should happen to a person’s property if they die during the marriage 
  • How debts will be handled by the spouses
  • Which spouse will be responsible for different expenses

Some couples also include statements regarding marital rights and responsibilities in their prenuptial agreements. 

What Can I Include in a Prenuptial Agreement?

Prenuptial agreements can include provisions for a wide variety of concerns. However, the primary focus should be on financial considerations that may affect the relationship. Some details to include in a prenuptial agreement include:

  • Property and income
  • Business interests
  • Financial accounts
  • Inheritance right
  • Spousal support 
  • Financial disclosures
  • Terms specific to the couple

An experienced lawyer may be in a position to review your situation and advise you as to what provisions to include in your agreement. 

What Can I Not Include in a Prenuptial Agreement?

While a prenuptial agreement can be customized to fit your particular situation, there are some issues that a family lawyer may recommend addressing through some other means, rather than attempting to anticipate and make provisions for those eventualities within the bounds of a prenuptial agreement. Common examples include:

  • Child custody or support – Decisions regarding child custody and support are made in consideration of the child’s best interests. Therefore, spouses cannot negotiate these terms in a prenuptial agreement. 
  • Lifestyle clauses – Provisions regarding infidelity, the personal choices of the spouses, or behavioral actions may not be upheld and may put the entire agreement into question.
  • Unfair provisions – New Hampshire courts do not enforce prenuptial agreements that are “excessively unfair.”

What Is Fair To Ask for in a Prenup?

What is fair to ask for in a prenup will vary by each situation. What may seem fair in one case may not seem fair in another. Courts in New Hampshire presiding over a divorce in the context of an established prenuptial arrangement (usually referred to in New Hampshire as an “antenuptial” agreement) will consider whether the agreement is “excessively unfair.” Even if the agreement favors one spouse over another, this will not necessarily invalidate the agreement; on the other hand, an agreement whose provisions the presiding judge considers to unreasonably disadvantage one spouse over the other may not be enforced, even if both of the parties signed the document prior to the marriage.

A primary purpose of a prenuptial agreement is to protect the financial interests of one of the parties who may have more assets or a higher income than the other party. Therefore, some inequality is to be expected. Courts consider whether the agreement would result in one spouse becoming impoverished if the agreement is upheld. An experienced lawyer from Friedman & Bresaw, PLLC may be able to review your situation and help you consider what might make for a fair agreement.

What Are the Benefits of a Prenuptial Agreement?

Prenuptial agreements provide many benefits to individuals, including:

  • Certainty – Prenuptial agreements can provide certainty so that each spouse will know what happens to property in the event of death or divorce. 
  • An amicable experience – One of the major benefits of a prenuptial agreement is that it allows couples to enter into a valid agreement about the end of their marriage at the beginning when they are more likely to feel positively toward their fiance. 
  • Litigation avoidance – Because the prenuptial agreement sets out provisions about how the couple’s assets will be divided, who is responsible for debts, and whether to pay spousal support, the couple can avoid costly and contentious litigation. 
  • Privacy – By signing a private contract, the couple can make major decisions about their finances in a confidential setting, rather than having these issues decided in a public forum like a courthouse. 

What Do I Need To Do To Make a Prenuptial Agreement Valid?

Prenuptial agreements in New Hampshire must be in writing and signed by both parties. They also must be entered into voluntarily by both of the signatories. Therefore, if one of the spouses was put under undue or unreasonable pressure to sign the agreement, an experienced family law attorney may be able to challenge the validity of the agreement in a New Hampshire divorce court. Both spouses must provide accurate and complete financial disclosures to each other. Legal professionals generally agree that it is a wise practice for each spouse to have their own lawyer to review the agreement and advocate for their positions. 

Contact an Experienced Family Law Attorney for Help

If you are thinking about creating or signing a prenuptial agreement, consider contacting a knowledgeable family lawyer from Friedman & Bresaw, PLLC. An attorney experienced in New Hampshire family law cases may be in a position to evaluate your particular situation, prepare a prenuptial agreement that protects your interests, and negotiate favorable terms for your agreement. If you have any other questions about prenuptial agreements, consider scheduling a confidential consultation by calling (603) 707-4800.

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About the Attorney
Jesse Friedman

Jesse has personally represented thousands of clients throughout the State - from juvenile delinquency offenses through homicides. He has extensive trial and litigation experience and has obtained favorable outcomes for thousands of clients throughout the years.

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