In 2003, the Supreme Court of New Hampshire presided over an interesting case on duress and prenuptial agreements. The husband in question, John, was a very successful real estate investor, and he had two marriages. His first marriage was to Kathryn, which resulted in five children and divorce. He ended up owing her millions from the divorce settlement. Not too long after came John’s second wife. John’s second marriage occurred in his 50’s to Erin, a 22-year-old Thailand immigrant.

John and Erin signed a prenuptial agreement, to Erin’s disapproval. John presented the prenup to Erin just days before the wedding. Erin vehemently disagreed to it at first. Then, after John told her he would not get married without her signing it, Erin agreed to discuss it. John’s attorneys referred Erin to a recent law school graduate who had never negotiated a prenuptial agreement. This attorney “represented” Erin and negotiated 1/6th of John’s estate in the prenup. He was also not able to verify John’s financial disclosure provided and decided that this was okay because it would probably be in Erin’s favor anyway.

Erin was sobbing uncontrollably during the negotiation meeting because she did not want to do this. She felt backed into a corner because 200 guests were already on the way, including her parents, who flew in from Thailand.

When John died, Kathryn, John’s first wife, sought to enforce the prenup, while Erin sought to throw it out because she did not sign it voluntarily. The court agreed with Erin and declared the prenup invalid based on duress. The court explained that if an agreement was signed under duress, it was not signed voluntarily. The circumstances were coercive, one party exerted wrongful pressure, and the person had no other alternative but to sign the agreement. The court also noted that timing is a huge factor; the prenup should be presented at least 30 days before the wedding.

In this case, the court said that Erin did not sign voluntarily based on several reasons:

• If she refused to sign the prenup, she would have to cancel a 200-person wedding and lose her means of support (i.e., John). He had encouraged her to quit her job so he could support her.
• John contemplated the prenuptial agreement two years before the wedding, yet he only presented it to her a few days before it. This left Erin with very little time to obtain her own attorney and negotiate the contract.
• Erin’s so-called attorney was not an adequate representative, he had no experience in negotiating contracts, and he never verified John’s financials.

The court said Erin did not sign this prenup voluntarily with all of these things considered.

In re Est. of Hollett, 834 A.2d 348 (N.H. 2003)

Alexander and Marianna began dating in 2003 while Marianna lived in Russia and Alexander in the U.S. About two years later, in October of 2005, they got engaged. They planned to wed in Russia. In the meantime, a few months after getting engaged, Alexander told her that he needed to execute a prenup to protect his children from a previous marriage. Marianna had the prenup agreement translated to Russian (her native language) and agreed. They spontaneously decided to wed in the U.S. and signed the prenup that same day. The prenup did not have financial statements attached, but the prenup did refer to the financial statements.

At the divorce, Marianna requested to throw out the prenup because she did not sign it voluntarily. She based her argument on two reasons: (1) that it was signed on the day of the wedding, and she didn’t have enough time to review it, and (2) the prenup did not have financial disclosures attached, so she did not have a complete picture of what she was “giving up.”

The court disagreed with Marianna and held the prenup not to be signed involuntarily, thus enforcing it. The court reasoned that the two had discussed and agreed to enter a prenup three months before the marriage. In addition, the failure to attach the financial statements to the prenup was not enough to render it involuntarily signed. She had ample opportunity to investigate his finances and obtain her attorney. As a final note, the court mentioned that this was not an unequal balance of power relationship; Marianna was well-educated and sophisticated with a law degree from Russia. She was not in a disadvantaged bargaining situation. There was no apparent bad faith from Alexander either.

Matter of Nizhinikov, 132 A.3d 412 (N.H. 2016)

An American Airlines pilot was vacationing in England when he met a woman and fell in love. Not long after, he proposed to her, and she said yes! She dropped her life in England and made plans to start her new life in New Hampshire. Three days before the wedding, he presented a prenup to her. She hated the idea but reluctantly agreed. She had one stipulation: they include a clause that declares the prenup void if he leaves her for another woman. Why you ask? Her thoughts were that this clause would permit her to void the prenup and ask the court for more if he cheated on her. In other words, she didn’t like the prenup’s terms, but in the worst-case scenario (him cheating on her), she could throw out the prenup and ask the court for more.

The question became: is this void against public policy? Can two people write such a clause into their contract? In New Hampshire, the answer is yes. It is not against public policy. The court reasoned that this clause, in effect, allows for the state of New Hampshire to determine the parties’ financial incidents, and that’s okay!

The moral of the story is that you don’t want to end up in court battling over whether your clause violates public policy. The best practice is to agree to terms in a prenup that you feel comfortable with!

MacFarlane v. Rich, 132 N.H. 608 (1989)

Official term for property not considered part of the marital estate in New Hampshire

Property is typically either considered separate property or marital property. Generally, separate property means property owned before the marriage or inherited; marital property is acquired during the marriage. Most states make separate property not divisible in the divorce. However, New Hampshire does not follow suit. The default rule in this state is to make both separate property and marital property subject to division in the divorce. The burden is on each spouse to persuade the court why they should keep certain property separate.

This is the NH term that is used to describe any income or property (real or personal) that is considered subject to division upon a divorce. New Hampshire is an “equitable division” state, which does not necessarily mean “equal” division. In fact, upon a divorce, the court may decide that an equal division would not be appropriate and may divide property in a different way based on many factors listed in the NH divorce statute. Those factors include the duration of the marriage, the age, social or economic status of each party, the occupation and ability of the custodial parent to also be employed, among others. Check out the statute for the fine print.

Official term for spousal support in New Hampshire

In New Hampshire, spousal support is called “alimony,” the financial support ordered by a court to be paid by one spouse to the other. Alimony may be ordered permanently, periodically (short-term), as reimbursement, or temporarily during a pending divorce. A New Hampshire judge may find alimony appropriate when one spouse lacks sufficient means to meet their needs and cannot find employment, and the other spouse has the means to pay it. A judge will consider factors like each spouse’s age and health, social and economic statuses, each spouse’s occupation, sources of income, and more. If this framework is not to your liking, you should specify it clearly in a legal document, such as a prenuptial agreement.

>>For more fine print on alimony in New Hampshire, review RSA 458:19