A Look at Cross-Border Prenuptial Agreements

Considerations, Implications, and Enforceability of Prenups Among International Couples

Prenuptial agreements benefit those with foresight about their financial and relationship goals. They can reduce conflict in the event of a divorce or death. Couples contemplating marriage can express their wishes and clarify their concerns about child custody and property rights in a prenuptial agreement before marriage-ending conflicts arise. Such contracts are generally enforceable in New Jersey between residents, but what about marriages between a foreign citizen and a New Jerseyan? Since international laws may affect the legality of a prenuptial agreement, you must be extra cautious about cross-border prenuptial agreements to ensure your document is enforceable and identify when it may not protect your financial assets in the way you planned.

Variability of Enforceability for Cross Border Prenuptial Agreements Among Countries

Does a Prenup Have International Legal Standing? Not universally across the globe. Depending on the jurisdiction, foreign or domestic, your prenuptial agreement may be more or less enforceable, as some countries other than the United States are more open to cross-border prenuptial agreements than others. Marital laws vary from state to state and country to country. Thus, the validity of prenuptial agreements depends on the jurisdiction. Some jurisdictions do not recognize cross-border prenuptial agreements, while others do to a small or large extent. In a given case, courts may consider the spirit of the contract and base some, none, or all property division decisions on it.

What is the Purpose of an International Prenup?

A cross-border prenuptial agreement outlines legal and financial obligations and rights for couples with connections to multiple countries, whether one is a foreign national and the other a domestic or the couple has assets in multiple jurisdictions. It spells out where assets go in the event of divorce and the legal rights and duties of the parties upon separation.

In an international marriage, a prenuptial agreement may define where children will reside, how financial debts will be divided, who pays alimony, and how debts are handled. It may contain will and trust documents for inheritance upon one spouse’s death. Designating financial and parental obligations can be complicated when the couple has international residences, properties, and businesses.

Cross-border prenuptial agreements typically state which laws govern to interpret and enforce them. It is essential to choose the jurisdiction that recognizes the agreement wherever the parties have ties to, financially or otherwise.

Benefits of Transnational Prenuptial Agreements for International Couples

A valid prenuptial agreement provides invaluable protection and peace when you need it most, in times of disagreement and stress.

Asset Protection

For one, it safeguards premarital assets. For individuals who wish to preserve their assets acquired before marriage, the prenuptial agreement can assign separate property to them if separation or divorce occurs. So, when the couple separates or divorces, the home in Italy goes to the one who owned it before marriage, according to the prenuptial agreement.

Financial Expectations

The agreement may also include each party’s financial expectations. One spouse may be responsible for paying off the debts they brought into the marriage. Alternatively, one spouse may agree to pay off the other’s debts in exchange for a larger share in the sale proceeds of the marital home in the event of a divorce per the prenuptial agreement. Couples contemplating marriage can also determine whether one spouse pays the other alimony or whether they both waive their rights to spousal support. When alimony is included, the parties can determine the specifics as to duration and other terms, depending on the laws in the jurisdiction where the parties live, divorce, or choose in the agreement.

Likewise, the agreement can establish support for children of prior marriages. However, support calculations for children of the marriage are complex. A family law court determines child support according to the laws governing the parties’ divorce, not their prenuptial agreement.

International Property Considerations

Anticipating conflicting international laws, the parties may outline contingency plans if one country’s rules do not allow one party to relinquish their ownership rights of a marital home in its jurisdiction. They can include alternate arrangements to compensate for losses due to one country’s prohibited property transfers, like an equivalent value in stocks or other financial assets.

Business Interest Protection

A well-crafted agreement can also protect business interests by specifying how those interests are split in the event of a divorce, regardless of their location. It also gives each party to the agreement an opportunity to preserve their separate property interests in a business they brought into the marriage.

Inheritance Controls and Estate Planning

By preserving separate property interests and determining which jurisdictional laws apply in the agreement, an individual can maintain control over where their property goes after they die. Thus, according to New Jersey law, a New Jersey resident can specify that a specific individual inherits the home they brought into the marriage. It can also clarify that children of a prior marriage inherit specific property.  Similarly, when one spouse dies, the separate property of one spouse may go to the child of a previous spouse, per the agreement.

Essential Components when Structuring International Prenuptial Agreements

A cross-border prenuptial agreement is more likely to fulfill the parties’ wishes when they fully disclose all assets each has. Otherwise, the agreement may be invalid on grounds of fraud or misrepresentation.

1. Choice of Law and Jurisdiction: The agreement should also specify which law governs the agreement. A couple with relevant ties to Japan and New Jersey may decide Japanese laws are more favorable to their plans and choose Japanese law to govern the enforcement and interpretation of the agreement.
2. Forum Selection and Enforcement: Along with the choice of law provisions, a couple may include a choice of forum clause that designates the court and jurisdiction that will decide disputes. Familiarity with a particular court’s laws and rules governing cross-border prenuptial agreements may ensure more predictable outcomes in the event of a dispute. A reciprocal enforcement clause assures the parties that support obligations are enforced where the obligated parent resides, including overseas.
3. Ensuring Agreement Validity: Other provisions that bolster an agreement’s validity include provisions attesting to the parties’ full disclosure and voluntary entry into the agreement.

New Jersey Courts’ Evaluation of Cross Border Prenuptial Agreements

New Jersey’s Uniform Premarital Agreement Act (UPAA) contains the requirements for valid prenuptial agreements. New Jersey adopted the UPAA in 1988, which governs what must be included in enforceable prenuptial agreements. At a minimum, an agreement must be in writing, including all financial assets and debts, and be signed freely and voluntarily. It must also be court-approved before marriage. New Jersey typically enforces foreign prenuptial agreements that are not contrary to public policy. Since child support and divorce are public policy matters, agreements that waive child support or prohibit a party from divorce are unenforceable and seen as against public policy. Also, questionability surrounding either party’s voluntary entrance into the agreement may lead to lack of recognition of the agreement in New Jersey.

Addressing Cultural and Legal Complexities in Cross-Border Prenups

Cross-border prenuptial agreements differ from other prenuptial agreements as cultural factors may shape the terms. The parties may include provisions considering marriage, family, and financial values and behaviors common to specific cultures. For example, it may be customary for a male spouse to be responsible for financial support in countries where men have more rights and opportunities to be the provider.

Other considerations for cross-border prenuptial agreements are the laws of different countries, which may affect the validity of some or all provisions. Enforceability may be especially challenging when a couple has financial assets in various countries with conflicting legal systems.

A final consideration is the premarital agreement, which is a snapshot of a couple’s situation at a specific time. Circumstances change as a marriage evolves over time, including the addition of children, job changes, and other life changes. As such, couples should periodically review and update their agreement to adapt to new circumstances.

Trust Our New Jersey Family Law Team with Your Concerns About an International Prenuptial Agreement

Drafting the right cross-border prenuptial agreement for a couple’s specific situation requires an in-depth knowledge of the laws affecting marriage, divorce, contracts, and public policy of various jurisdictions. The experience of our family law attorneys at Bronzino Law Firm, who frequently come in contact with and advise clients about cross-border prenuptial agreements, is essential. Our firm counsels international couples anticipating marriage to project the potential needs and challenges that must be accounted for in a prenuptial agreement that will be enforceable in multiple jurisdictions. We guide and protect the interests of the parties when drafting the agreement and in the future if a prenuptial agreement from elsewhere becomes a source of contention in a New Jersey family law case.

When you need the foresight, creativity, and knowledge of a legal professional, contact our team of family lawyers with extensive experience and insight into transnational prenuptial agreements. Call (732) 812-3102 for a no-obligation, free consultation, or reach us online today.