• Prenuptial Agreements: A Growing Trend for International Marriages
  • March 27, 2009 | Author: Steven W. Goldfeder
  • Law Firm: Blank Rome LLP - New York Office
  • Prenuptial agreements, antenuptial agreements, and premarital agreements all refer to contracts between couples who plan on getting married and want to ensure that, in the event the marriage does not work out, they can divide their assets and make the necessary financial arrangements between them in as amicable and equitable a manner as possible. While this approach may seem to lack romance, it is nonetheless extremely practical since going through the divorce process without a prenuptial agreement can expose a spouse to years of litigation and great uncertainty as to how a court will choose to divide the assets of the marriage.

    Prenuptial agreements are particularly pertinent to international marriages and/or where the couple possesses assets inside and outside the United States. It is important to consider the impact of different jurisdictions in the event of a divorce. Laws vary not only between countries, but also between the various states in the USA. One crucial aspect of an international prenuptial agreement is the choice of law clause. A properly drafted prenuptial agreement must contemplate where the parties are likely to reside and contain a provision concerning the choice of law to be applied. One must consider the laws of different jurisdictions to craft a prenuptial agreement that will work best for international spouses. Different jurisdictions require different components to be included in the prenuptial agreement to make it enforceable. It is a critical element to ensure that such an agreement contains valid and enforceable choice of law provisions to avoid rendering the prenuptial agreement null and void.

    A prenuptial agreement may also be used as an estate planning device to assist a couple in providing for a disposition of their assets upon death, even in the event of an intact marriage. Just like most individuals establish a will to protect their families and loved ones, entering into a prenuptial agreement ensures that the division of property will be followed in the manner by which both future spouses agreed upon at the time they signed such an agreement, a provision which could not later be changed at the whim of one spouse acting without the consent of the other, or vitiated by local estate laws that guarantee a surviving spouse a specified percentage of the decedent's estate. Prenuptial agreements are prevalent in second marriages, especially when there are children from a prior marriage. Such an agreement is often utilized to protect the inheritance of a spouse's child or children from a previous marriage. The parties may also wish to consider a provision protecting a party's rights to separate property by waiving the surviving spouse's legal right to claim a share of the other spouse's separate property at death.

    A major advantage of prenuptial agreements is that they allow people to take more responsibility for keeping their lives in order by helping them to build a solid foundation for their marriage. By encouraging a soon-to-be married couple to look at the financial issues they may face as husband and wife and reach agreement on these issues before they get married, they are likely to avoid the uncertainty and emotional toll associated with a heavily litigated divorce. Spouses who have conducted their marital relationship in conformity with a carefully drafted and reasonable prenuptial agreement, which fully complies with the laws of the state or country of their residence, can expect that such an agreement will be afforded due recognition by the courts at the time of a divorce.

    While prenuptial agreements are helpful in defining and limiting property rights in the event of a divorce or death, most jurisdictions do not permit the parties to enter into a contract pertaining to future child support or child custody and visitation. Most courts retain their own authority to act in the best interests of any future children of the marriage and will not enforce those provisions of a prenuptial agreement limiting or waiving child support–or a spouse's rights to custody and access–to a yet-to-be born child. One must be careful in drafting these agreements to ensure that they are in compliance with the laws of the jurisdiction where they are sought to be enforced.