Most people are familiar with the concept of a prenuptial agreement, an agreement between a couple planning on getting married about how issues such as division of property will be resolved if they are ever divorced in the future. Less well known, but increasingly common are postnuptial agreements. Like a prenuptial agreement, a postnuptial agreement determines how issues relating to a future divorce will be settled — the key difference being that the postnuptial agreement is made during the marriage, not beforehand.
Although many states have already accepted the validity of postnuptial agreements, it was not until this month that the New Hampshire Supreme Court officially ruled that they can be valid in New Hampshire. In the case of In Re Estate of Richard Wilber, the Wilbers, who were married for many years, came to an agreement that Mr. Wilber would get to keep a property in New Hampshire while Mrs. Wilber would get to keep a property in Maryland. After they both died, the Court ordered that this agreement was enforceable on their estates.
The situation in the Wilber case was not the typical postnuptial agreement in that it involved how property was to be divided while the parties were alive and after they died, not if they got divorced. However, in rendering its decision, the Court made it clear that postnuptial agreements are enforceable in New Hampshire. The Court reasoned that, “postnuptial agreements give married persons the flexibility to dispose of their property and establish their rights and obligations upon death or marital dissolution, given their particular life circumstances.”
If you are considering the need for a marital agreement — be it postnuptial or prenuptial — it is wise to consult a New Hampshire divorce lawyer before making any decisions. This area of the law is tricky and if the agreement is not reached and executed properly it can fail to achieve the desired outcome, or even be held unenforceable altogether.