Valentine’s Day…Are you going to POP the Big Question?

Are you planning to pop the “big question” on Valentine’s Day? Did you pick out the perfect ring? Pick the perfect location? Make a reservation at their favorite restaurant?

Consult with a lawyer about a prenuptial agreement?

You probably don’t think you need one. Maybe you think prenuptial agreements are only for wealthy people or Hollywood stars. Maybe you think it’s a sign that the couple doesn’t believe the marriage will last. However, rather than considering it a negative outlook on your relationship, a prenuptial agreement can be a practical way of planning for your future.

A prenuptial agreement or antenuptial agreement, commonly referred to as a “prenup,” describes the legal rights and obligations of the spouses to the agreement.[1] For the agreement to be valid, it must be entered into well before the actual wedding date (preferably months before[2]), however, the agreement does not become valid until and unless the couple marries. Prenuptial agreements traditionally address issues like asset distribution in the event of a divorce, inheritance issues if one person passes away, and they can also address the conduct of the parties during the marriage, such as whether one spouse will stay at home to take care of future children rather than pursue a career. It’s also important to consider a prenuptial agreement if you’re entering into a second marriage, especially where you or your future spouse have children from a prior relationship. In addition, you may not realize what property actually becomes part of the marital estate until you have spoken to a lawyer, such as inheritances from your family.

Why should you speak with a lawyer instead of using those legal services on the internet? After all, those internet services cost a lot less and they let you fill in the blanks. First of all, a Prenuptial Agreement is a written contract that is signed by both spouses, and although prenuptial agreements are just contracts, courts scrutinize them much more strenuously than traditional contracts. In fact, the New Hampshire Supreme Court has even suggested attorneys are recommended to ensure that both spouses understand what they are getting into.[3]

To be enforceable, a prenuptial agreement must be procedurally and substantively fair.[4] Procedural fairness has to do with the circumstances under which the agreement was executed. For example, procedural fairness takes into account whether both spouses fully disclosed their finances to each other or had the opportunity to consult with an attorney before signing. Substantive fairness, on the other hand, is like a “gut test”: The Court gets to decide if enforcing the prenuptial agreement creates a “fair or just” result for each spouse. A court considers substantive fairness both at the time the agreement was entered into—before the marriage, considering if one spouse had more “influence or power at that time”—and at the time the parties are looking to enforce it—at the time of the divorce proceedings or death of a spouse, is the agreement still “fair”. So, while the agreement may have been “fair” at the time it was signed, circumstances during the marriage may make it unfair to enforce at the time of divorce. For example, if one spouse has earned significantly more than the other spouse, it may not be substantively fair to enforce an agreement that leaves the lesser earning spouse with an extremely small portion of the marital estate, especially if the reason why one spouse earned so much more was because the other spouse gave up a career to stay home with children or otherwise make it easier for the other spouse to earn that salary.

For people who have already gotten married, you can consider a Post-Nuptial Agreement. These contracts are considered valid in New Hampshire, and can be entered into any time during the marriage.

If you still think it may be too costly or cynical to enter into this type of contract, you may want to consider what you could lose if something goes wrong. Deciding how assets would be divided in the unlikely situation that you get divorced, while you are not fighting and can think about taking care of each other, can be an act of love in itself. Love is not the only thing that you bring to the marriage, and a broken heart is not the only thing at risk if your marriage doesn’t work out.

For more information or to schedule an appointment to discuss your options, contact Stephanie K. Burnham at 603-668-2222 or sburnham@hagehodes.com.

[1] A Practical Guide to Divorce in New Hampshire, NHCLE-PGD S. 22.2. NH RSA 460:2-a

[2] See, McFarlane v. Rich, 132 N.H. 608 (1989)

[3] See, Parkhurst v. Gibson, 133 N.H. 57 (1990)

[4] See, McFarlane v. Rich, 132 N.H. 608 (1989)

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