How Do Courts Enforce Prenuptial Agreements from Another State?

Marriage and divorce laws differ across the United States. The statutes for asset division between ex-spouses, child support contracts, and even child custody agreements all vary from state to state.  A common question is how a prenuptial agreement prepared in one state affects the outcome of a divorce filed in another state.

What is a Prenuptial Agreement and When Should You Use One?

A prenuptial agreement establishes how a couple’s assets will be distributed in the event of divorce, separation, or death. Couples typically benefit from prenuptial agreements when one spouse:

• Owns a business or real estate
• Has a higher income or net worth than their partner
• Has children from other relationships
• Expects a future inheritance
• Wants to leave their assets to someone other than their partner

So, what occurs when a prenuptial agreement is signed in one state, but then the couple moves to another state and is divorced? When courts look to interpret the contents of a prenup from another state, they use what is called Choice of Law. This means they will look to the law of the original state to establish what each party intended in the prenup.

However, there are some exceptions to Choice of Law. For example, even if the prenuptial contract would be enforced based on the law of the state in which it was originally signed, the current state may choose not to enforce it if the prenup agreement was not “fair and reasonable” according to their laws.

Best Practices to Ensure an Enforceable Prenup Across Multiple States

There are several steps to take during the drafting of your prenup to ensure its enforceability, including, but not limited to:

• Reporting your finances as accurately as possible at time of prenup. One of the most commonly cited reasons for an unenforced prenuptial agreement is because of one party’s failure to accurately report their assets. To prevent this from happening, an attorney from the original state should include strong disclosure provisions of both parties at the time of the signing.
• Preventing unequal outcomes of the prenup. It is typical for a spouse with more assets to push for prenup terms that increase safeguards for those assets. However, certain states may not enforce prenups that cause such asset disparities, especially in a longer marriage. To increase the likelihood a prenup is enforced, include a “safety net” clause that ensures the wealthier spouse will make fair payments to their partner every year following a divorce for as many years as was the marriage.
• Being proactive with the assets acquired during your marriage. Most states ensure protection of premarital assets in the event of a divorce. However, there are more disparities when it comes to assets acquired during the marriage. To help achieve enforceability over multiple states, couples should consider including some of their assets acquired during marriage in the division of assets to simplify this process.

States can vary significantly over marriage and divorce law. When signing a prenuptial agreement, it is crucial that the provisions inside are thorough, detailed, and in your best interests. If you live in New Jersey, call an attorney from Moskowitz Law Group to make sure your rights are protected throughout this process.