Know the Law: Challenging a Prenuptial Agreement

Photo of Jacqueline Leary
Jacqueline A. Leary
Associate, Litigation Department
Photo of David C. Tencza
David C. Tencza
Of Counsel, Litigation Department
Published: Union Leader
April 16, 2023

Q: Should I challenge my prenuptial agreement?

A: “That’s not fair! I never expected to get divorced when I signed the Prenup!” This is a common phrase we hear from clients or opposing parties after there is a breakdown in their marriage and the parties are discussing how the marital estate and spousal support will be decided under the terms of a prenuptial agreement.

Usually, a prenuptial agreement limits one party’s rights to spousal support or the equitable division of the marital estate as compared to what the party would be entitled to receive if no agreement had been signed.  For someone who goes through the divorce process after a long-term marriage, this agreement can significantly affect their ability to live a similar lifestyle to the one they enjoyed during the marriage.

If you sign a Prenuptial Agreement in New Hampshire, you should know that these agreements are generally presumed to be valid by the Court.  In order for the Court to find that a prenuptial agreement is invalid, the Court would have to find that,

(1) that the agreement was obtained through fraud, duress or mistake or through misrepresentation or non-disclosure of a material fact;

(2) that the agreement is unconscionable; or

(3) the facts and circumstances have so changed since the agreement as executed as to make the agreement unenforceable.

To decide whether the agreement should be challenged under one of these factors, it is important to understand what the potential outcomes of the case could be with or without the Agreement.

Under New Hampshire law, a person involved in a long-term marriage is generally entitled to an equitable division of the marital estate and the Court presumes that an equal division is equitable.  And, a person may be entitled to alimony for a period of time equal to half the length of the marriage.  Therefore, if you agree to limit the size of the marital estate in a prenuptial agreement or limit the number of years you will receive spousal support, you may be significantly limiting the assets that you are entitled to at the time of the divorce and any contribution made to the value of these assets during the marriage.

Whether you have just been presented with a prenuptial agreement or are trying to determine if one will be valid at the time of your divorce, it is important to consult with an experienced legal professional regarding all of your options.

Know the Law is a bi-weekly column sponsored by McLane Middleton.  Questions and ideas for future columns should be emailed to  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.