Prenups on the Go: Exploring Their Enforceability Across Borders

What we include in Prenups

We include a choice of law clause in our premarital agreement to will control the agreement. We should carefully draft that clause to ensure that it applies to both the procedural law (the validity of the agreement) and the substantive law that applies to disputed issues.

In theory, the substantive law will be the law of the agreement. Still, there are often issues of interpretation relating to the state’s family laws. There is no guarantee that a Kansas judge will apply California law to an agreement. Even if they do, they may not apply it correctly. 

Out of state family laws

A judge may choose not to apply California law because of public policy issues, such as spousal support. The state may be a “second look” state, allowing a court to consider whether a premarital agreement has become unconscionable or unfair. The state may have higher standards for validity, or it may not enforce limitations on spousal support. Whether a court enforces a choice of law clause may depend on how long they lived in the state where the agreement was signed and the parties’ nexus with the new jurisdiction. Some lawyers add more protection by including a forum selection clause in their agreements, as in DeLorean v. DeLorean (1986) 211 N.J.Super. 432, 511 A.2d 1257.

Prenups presumed valid in California

It’s important to be wary of clients who are planning to relocate to California because of how differently things are done here.  Premarital agreements are presumed invalid in California (Marriage of Last (2023) 94 Cal.App.5th 30). The presumption can be overcome by showing that the agreement was entered into voluntarily, that it was not unconscionable, that there was adequate disclosure, that the parties were each represented by independent counsel (with certain exceptions), that there was the seven-day “cooling off period,” and that there was no duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement, or any other factors the court deems relevant. Would a California court apply all these conditions to an out-of-state agreement? We do not know the answer to this question.

The parties may not end up getting divorced in the United States. An English court may enforce a foreign prenup, or they may treat it like an English prenup. England also takes a “second look” and will not enforce what a court determines as an unfair prenup. Premarital agreements are new to England, so the results are unpredictable because of the absence of precedent.