Prenuptial agreements specify how a couple will handle financial matters if they divorce or separate. These agreements can be particularly important for couples of different nationalities or those planning to live in more than one country since they can address varying divorce laws and protect assets abroad. However, to have an effective and enforceable prenup, the agreement must have several key elements.
Full financial disclosure
Under Virginia law and in many other U.S. states, complete and honest disclosure of both parties’ finances is a requirement. A prenup should include details of all property owned, bank accounts, debts and income sources. Courts may invalidate parts of or the whole agreement if there is proof that one spouse hid financial information. Many other countries also require this transparency to enforce prenuptial agreements.
Choice of law and jurisdiction clauses
Choice of law and jurisdiction clauses in a prenup specify which country’s laws will apply to the agreement and which courts will handle disputes on how to interpret and enforce it. U.S. courts generally honor these choices as long as they do not go against public policy or basic rights.
In Virginia, the Uniform Premarital Agreement Act allows couples to choose the law governing their prenup. However, state courts may still apply local laws for certain issues, such as following Virginia law for matters regarding children, even if the prenup says otherwise. Courts might also disregard the chosen law if it lacks a significant relationship with the parties or would lead to an unreasonable result.
Clear and fair terms regarding assets and support
Asset division and support terms should explain how the parties will split their property and handle financial support if they divorce. It’s important to make these terms as fair and clear as possible to ensure that they are enforceable. U.S. courts may view a term as unfair if it heavily favors one spouse or if one agrees to it under pressure or without knowing all the facts, though the burden to establish this can be difficult to meet.
Both partners should get their own lawyers and fully understand the agreement before signing. Consult with an attorney familiar with international family law to ensure terms are enforceable in all relevant countries, as recognition and rules can vary widely.
Protect your interests across borders
International prenups require careful consideration of multiple legal systems. Contact an attorney to ensure your agreement stands up to scrutiny in any relevant jurisdiction. You may need to confer with counsel across jurisdictions if you plan to be an international family. Begin the process early enough that neither you nor your spouse feels pressured to finalize the prenuptial agreement on the eve of your wedding.
