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Enforceability Of A Prenuptial Agreement When The Original Document Cannot Be Found

On Behalf of | Sep 19, 2014 | Divorce & Family

In some marriages the parties execute prenuptial agreements which seek to protect certain assets from division by a family court should the marriage end in divorce. These agreements must be in writing and signed by the parties in order to be enforceable. In some cases, however, the parties have lost the original signed agreement and may only have unsigned or draft copies. In the Matter of Serodio and Perkins, the New Hampshire Supreme Court held that the failure to locate the original signed agreement does not preclude enforcement. In Serodio, the husband claimed that he and his wife signed a prenuptial agreement and the wife kept the only signed copy. Unfortunately he could not locate the signed document. The wife argued that she never signed the agreement. The trial court dismissed the request to enforce the prenuptial agreement because the husband could not produce the original signed document. On appeal, the New Hampshire Supreme Court reversed stating that while a prenuptial agreement must be in writing and signed in order to be enforced, the party seeking to enforce does not have to necessarily produce the original signed document. Instead, the husband could attempt to prove that an original signed prenuptial agreement did exist at one time, through introduction of other evidence such as testimony from the attorneys who drafted the agreement and/or testimony from witnesses who observed the parties signing the agreement. Serodio stands for the proposition that merely because the original prenuptial agreement cannot be located does not mean that the court will ignore the existence of this agreement if satisfactory secondary evidence can be located such as witness or attorney testimony. A court may conclude that an original, signed agreement existed at one time and from there determine whether the terms of that agreement are enforceable.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].