While once considered only the province of the rich and famous, premarital agreements are becoming more common in today’s society. A premarital agreement is a contract signed before the marriage between the soon to be husband and the soon to be wife which sets forth the division of assets and liabilities in the event of death and/or divorce. For example, one party may come into a marriage owning significant assets such as real estate or investments and he or she may want a premarital agreement so that in the event of death or divorce the terms of the premarital agreement would govern the other spouse’s claim to those premarital assets.
Premarital agreements must be drafted with extreme caution. It is important, first, to understand that a New Hampshire court will not enforce any premarital agreement which attempts to set forth a child custody schedule or a child support order.
When negotiating a premarital agreement, both sides must make a full, accurate and complete disclosure of their financial assets and liabilities. If it is subsequently shown that there was not a complete or accurate disclosure, the premarital agreement could be voided.
When negotiating a premarital agreement, one should take care to ensure that there was adequate time before the wedding to resolve any disputes in the agreement. While a New Hampshire court will not automatically invalidate a premarital agreement that is given to the spouse on the eve of the wedding, such timing could be a significant factor in determining whether the agreement is enforceable..
In determining whether a premarital agreement is enforceable a court will take into account the skills of the attorneys who drafted the agreement, whether they had adequate time to fully familiarize themselves with the case and if they had time to determine whether a full and complete disclosure of assets had been made. In a recent decision, the Supreme Court invalidated a premarital agreement that was negotiated days before the wedding in which the wife was represented by an attorney who had limited skill in drafting premarital agreements and little opportunity to validate the data that was presented to him by the husband.
It should be noted that the fact one spouse chooses not to challenge the premarital agreement during the marriage does not mean that a challenge cannot be brought during the divorce. The Supreme Court has held that a spouse seeking to invalidate a premarital agreement need not bring such an action prior to the divorce as this would encourage needless litigation between spouses.
In sum, a couple should not attempt to draft or negotiate a premarital agreement without seeking the advice of competent lawyer.
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]