postnuptial agreements

As of an August 21, 2013 decision, a postnuptial agreement between spouses on the disposition of their property in the event of divorce or death may be enforceable.  The N.H. Supreme Court reasoned that, while our divorce statutes are designed to ensure a fair outcome regarding property distribution, there is no reason why those statutes “should, in every case, override the mutual agreed-upon will of consenting adults.”

Our Court held that a party seeking to invalidate a postnuptial agreement must prove that:  “1) the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of a material fact; 2) the agreement is unconscionable; or 3) the facts and circumstances have so changed since the agreement was executed as to make the agreement unenforceable.”  Further, the Court held that “the parties must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the terms and execution of the proposed agreement, with fairness being the ultimate measure.”

This is a novel development in New Hampshire divorce law, but the principle is really nothing new:  if a Court thinks that a contract is fair, the Court will enforce it. If it doesn’t, it won’t. That’s the same way the Court handles prenuptial agreements.

By:  Peter G. Webb


Posted in: Family Law


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