By Chuck Douglas, Concord NH Lawyer
For decades, New Hampshire has allowed pre-nuptial agreements to be signed between spouses-to-be prior to their marriage. In August, the Supreme Court ruled that post-marital agreements or post-nuptials are now permitted under New Hampshire law. The court said the modern view is that spouses may freely enter into contractual relationships as long as the criteria for contract formation are met and the agreement is fair.
Post-nuptial agreements give married persons the flexibility to dispose of their property and establish obligations and rights upon their death or marital dissolution. In the recent case of Estate of Richard Wilber, the court said that as long as the agreement was not obtained through fraud, duress or mistake, or through misrepresentation or non-disclosure of a material fact, it would be permitted with two additional conditions: 1.) the agreement is not unconscionable and 2.) the facts and circumstances have not changed so much since it’s execution as to make the agreement unenforceable.
Thus, the parties to a marriage who wish to contract years after they have been married must have “the highest degree of good faith, candor and sincerity in all matters bearing on the terms and execution of the proposed agreement.” Usually, after years of marriage, the parties know the other spouse’s financial status, but if that were not the case, full disclosure would have to be made. With the court’s recent decision, at least now a couple can go into a marriage with or without an agreement and later come up with a contract to govern what happens upon death or divorce.
If you are contemplating a post-marital agreement or post-nuptial, you should consult an experienced family law lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form.