Walking down the aisle soon? Congratulations! We know you have a lot on your wedding to-do list, but there’s one more thing you should add: A prenuptial agreement. Or at least learn about them so you can make an informed decision on whether or not it’s right for you. From the legal requirements to the laws that apply if you don’t have a prenup in New Hampshire, we go over everything you need to know before signing a prenup in NH. Let’s get started!
1. The laws governing New Hampshire prenuptial agreements
New Hampshire is one of several states that does not utilize the Uniform Premarital Agreement Act (this is the uniform law that 28 states utilize for prenuptial agreements). Instead, New Hampshire has its own statutes governing prenups (N.H. Rev. Stat. § 460:2-a; N.H. Rev. Stat. § 506:2). These statutes say:
- Prenups must be in writing and signed
- Prenups cannot include child matters, such as child custody or child support
New Hampshire also relies on case law to determine the requirements for prenups. The Supreme Court of New Hampshire has explained that a prenup is presumed valid unless:
- It was obtained through fraud, duress, mistake, misrepresentation
- It was obtained through nondisclosure of a material fact
- The agreement was unconscionable (egregiously one-sided or unfair)
- The circumstances have changed so much since the signing of the agreement that it is unenforceable.
- (See In re Est. of Hollett for the full NH Supreme Court case)
As you can see, New Hampshire favors prenups, as long as they are done fairly. These rules are put in place to ensure that parties are not taken advantage of in a marriage and that agreements are reasonable.
2. The agreement must be signed well in advance of the wedding (at least 30 days)
The Supreme Court of New Hampshire has made it clear that prenuptial agreements should be signed well in advance of the wedding. Though it’s not a strict requirement, it’s a strong recommendation from the Court, which stated that the prenup agreement should ideally be signed at least 30 days prior to the wedding. (In re Est. of Hollett). This means you should get the prenup process started a few months before the wedding because you should be signing the prenup 30 days before walking down the aisle.
For example, if John and Sarah are getting married on March 1, 2025, then they should be signing the agreement on February 1, 2025. This means that they should likely get the prenup process started around December or January to make sure that they have enough time to create the prenup, negotiate, and hire a lawyer if they want one.
3. New Hampshire is an equitable distribution state
Without a prenup, in a New Hampshire divorce, your property will be divided according to the default laws. In New Hampshire, this is known as equitable distribution, which is the legal framework that allows a judge to divide up your property equitably, not necessarily 50-50. Meaning it could be split 30-70, 40-60, or some other split. A judge looks at a list of statutory factors such as the duration of the marriage, the age of the parties, the health of the parties, and more, to determine how to divide up assets.
On top of that, either party’s behavior may be taken into consideration when determining how to divide up assets—this means a judge can look at each party’s behavior and determine if it should affect the distribution of assets between the couple.
With a prenup, you can override the equitable distribution laws of New Hampshire and divide up property however you and your partner deem fair.
(See N.H. Rev. Stat. § 458:16-a for the fine print on New Hampshire’s equitable distribution statute).
4. Your premarital assets are not safe without a prenup
The property you owned before the marriage is not safe. In many states, premarital assets are not considered in the “marital pot” when dividing up property. However, that is not the case in New Hampshire. Assets you enter into the marriage with may also be divided in a divorce.
For example, let’s say John and Melissa are on their second marriage. They both own their own homes and have their own retirement accounts. John’s home is worth $10M, and his retirement account is worth $1M. Melissa’s home is worth $300,000, and her retirement account is worth $200,000. During the marriage, they create a joint bank account together that has $50,000 in it. In a divorce, John and Melissa’s respective retirement accounts and homes and joint bank accounts may be pooled together and potentially divided up amongst the two of them. Effectively, Melissa could get a significant chunk of John’s assets, even though her name isn’t on it and it wasn’t acquired during the marriage.
With a prenup, you can make sure your premarital assets are protected and not considered divisible in a divorce. Phew!
5. What you can and cannot include in a NH prenup
You can include any clause that is financial in nature and not against public policy. For example, here are some clauses that people typically include in a New Hampshire prenup:
- Property division and ownership (this includes businesses, real estate, accounts, inheritances, etc.)
- Spousal support clauses
- Certain clauses about spousal inheritance rights
On the other hand, there are some clauses to avoid:
- Clauses about child support
- Clauses about child custody
- Any other clause that is against the law or public policy
Child matters cannot be included in New Hampshire prenups because their rights should be determined according to their best interests at the time of the divorce. Child support and custody are the rights of the children—not the parents, so it shouldn’t be contracted to in a prenuptial agreement.
6. Prenups do more than just protect you legally—they foster marital harmony, too
The act of getting a prenuptial agreement isn’t just about protecting your financial interests. It’s also about getting on the same page as your future spouse by discussing the hard topics. For example, the prenup process will require you to discuss topics like property ownership, joint bank accounts, retirement, having children, financial support during the marriage, and more. These topics facilitate other lifestyle-adjacent topics, like whether you’ll have children, at what age you want to retire, how you want to manage money during the marriage, and more.
In fact, 83% of HelloPrenup customers say that they felt closer together after the prenup process, likely because they had these hard conversations, talked through them, and came out the other side with a better understanding of one another.
The bottom line on New Hampshire prenuptial agreements
There you have it—the six things you need to know about New Hampshire law and prenups before getting on. From the legal requirements to get a prenup to the default laws without a prenup, you are now equipped to make an informed decision on whether or not a prenup is right for you. And remember, prenups are more than just legal protection—They are also a way to align with your future spouse on all things life and money. Cheers to this new chapter ahead and your prenup journey. Happy planning!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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