Is your prenup valid if you move to another state?
The short answer is yes. A prenup created in one state is valid in another state as long as you put a few safeguards in place. Here’s what that entails.
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Prenup Laws Across States
First, you should know prenup laws vary between states.
Prenuptial agreements are recognized in all 50 states, but the laws governing them vary significantly from one state to another.
These differences can include what types of agreements are allowed, how to disclose financial information, and what conditions can and cannot be included in the prenup.
For instance, while all states allow prenups to include provisions about the division of property, some states may have restrictions on whether a prenup can dictate terms of spousal support or alimony.
There are consistent laws across states, though. These include:
- Prenup agreements must be in writing
- Prenup agreements must be signed willingly, without coercion, and by both parties
- Prenup agreements can’t include unlawful provisions or provisions against public policy
Outside of these, different laws and guidelines may apply depending on which state you live in.
So what happens if you sign your prenup in one state but then end up moving and divorcing in another state? Will your prenup hold up?
Don’t worry. You can include a provision in your prenup called the choice of law provision to safeguard against this situation.
What’s a Choice of Law Provision?
A choice of law provision specifies which state’s laws will govern the interpretation, enforcement, and validity of your prenup, regardless of where you move during your marriage.
Let’s say you’re living in Florida with your fiancé, but know you plan to settle in California. With a choice of law provision, the state in which you are getting divorced will apply Florida law to the interpretation, enforcement, and validity of the agreement, regardless of where you sign the prenup or where you divorce. However, that state will be the governing law for any issues that are not addressed in the agreement.
I recommend contacting an experienced prenup attorney in the state where you’ll put down roots. They’ll be able to guide you through which clauses to include and which to omit so you reduce the risk of having your prenup invalidated.
What Happens If I Don’t Include a Choice of Law Provision?
Without a choice of law clause, your prenup is at the mercy of the court. They may decide to apply the rules of the state where you divorce or even utilize the state laws where you spent the most time as a couple.
The risk is the court may discard aspects of your prenup that don’t align with the selected state’s laws, negatively impacting the outcome of the divorce.
A choice of law provision is an easy way to ensure your prenup is utilized as you intended, regardless of geographic location.
How to Ensure Your Prenup Holds Up Across State Lines
To maximize the chances a prenup will be valid across state lines, apply the following tips:
Comprehensive Disclosure: Ensure both parties fully and fairly disclose their assets and liabilities.
Fair and Reasonable: The agreement should not lead to an unconscionable outcome for either party.
Independent Legal Advice: Both parties should seek independent legal advice from attorneys who can explain the implications of the agreement and the choice of law provision.
Choice of Law: Make sure that your agreement includes a clear choice of law provision if you potentially move out of state.
Review and Update: As life circumstances change, consider reviewing and updating your prenup to reflect new assets, state laws, or changes in your situation.
It’s wise to be overly cautious. Take every opportunity to build a comprehensive prenup that leaves as little room for error as possible.
Final Word: Caution is Key
While prenups are valid in all states, the specific laws governing them vary. Include a choice of law provision in your prenup to ensure its validity and enforceability across state lines.
Because state laws and your individual circumstances can become complex, it’s crucial to consult with a legal professional who understands the legal specifics of the state you’re living in.
Book a consultation call with me to discuss more about crafting a strong California prenuptial agreement. I help couples succeed in their marriage by crafting custom, powerful prenups.