Are you a married couple who self-identifies as “international?” Maybe you have assets in other countries, one of you is a citizen of another country, or you simply live a nomadic lifestyle. Whatever the scenario, if you are an “international couple” you may be thinking about a postnup (and good on you for considering it!). Postnuptial agreements (postnups) are contracts between a married couple who intend to remain married and want to outline certain financial obligations. But can an international couple get a postnup? And how does it work? Where do they start? Let’s dive into the world of postnups for international couples.
Who is an international couple?
Let’s go over who we’re talking about when we say “international couple.” Here are some examples of what may qualify you as an “international couple” for the purposes of this article:
Having cross-border assets
This may mean owning real estate in multiple different countries, having foreign bank accounts and investments, having business interests in different countries, or something similar.
People who live in multiple countries
People who reside long-term in different countries each year or alternate where they live frequently may be considered an international couple. For example, if you live in Spain for five months of the year and the U.S. for seven months of the year. Or maybe you are a digital nomad who hopes around country to country.
People who are immigrating to different countries with their spouse
Couples that are going through immigration processes in their spouse’s home country to obtain visas/citizenship. For example, if one spouse is a U.S. citizen and the other spouse is not, they may be going through processes to have the non-U.S. citizen obtain a visa and eventually citizenship in America.
Benefits of getting a postnup as an international couple
Regardless of the location of your residence, the location of your assets, or your immigration status, if you are any type of international couple, getting a postnup can be beneficial. Here are some pros to getting a postnup as someone with a borderless life:
- Defining financial rights and obligations in advance
- Clarity and predictability in the relationship regarding finances
- Foreign or domestic asset and business protection
- Addressing potential tax implications regarding cross border issues
- Streamlining certain aspects of estate planning
- Minimizing potential for extensive legal disputes regarding the marriage
- Potentially assisting with certain terms surrounding immigration
What law to apply to a postnup as an international couple
The big question for international couples getting postnups is going to be what law should they create the postnup under. Should it be U.S. law or foreign laws? If the U.S., which state should they choose? This is typically a question for both a U.S. family law attorney and a foreign country lawyer.
For example, let’s say John (Canadian citizen) and Ashley (U.S. citizen) are married and live in the U.S. However, they have discussed the potential for moving to Canada or potentially doing part-time in Canada. They want to get a postnup to help clarify certain aspects of their financial relationship, but aren’t sure where to get a postnup—in Canada or the U.S. or both? Their first step should be to contact a Canadian lawyer and a U.S. lawyer to determine which option would be best for their situation. You can usually get this question answered in a free consultation with a lawyer in either country.
One of the main factors that will be considered in this question is how does each country treat foreign-based contracts like postnups? Is it necessary to create two contracts or will the one contract suffice for both countries? If the foreign country has a different language than English, translation services may also be in order.
What to include in a postnup as an international couple
Now, let’s get into what you should consider including in a postnup if you are an international couple. Here’s what to consider:
- Choice of law: As we discussed above, determining which country and state/province/territory law apply is critical for an international couple. You will want to avoid any question of governing law in the event there is a dispute over the agreement.
- Property/debt ownership and division: As with any good postnup, you’ll want to include clauses about property and debt ownership and the potential division of such property in the event of a divorce. “Property” includes assets, accounts, real estate, businesses, inheritances, etc.
- Spousal support: If addressing spousal support is enforceable in the country you are getting the postnup in, then you should consider adding clauses regarding this matter to avoid disputes down the road.
- Financial disclosure: Even if you have assets overseas, you will want to disclose all of it in your financial schedule attached to your postnup. This includes income, assets, debts, and future inheritances. So, if you have a bank account in Portugal and a retirement fund in the U.S., make sure you note both.
- Estimated values of assets: Of note are the values that should be included in your financial disclosure. If they are in a foreign currency, you should have the value translated into the postnup’s governing law country’s currency. For instance, if you are getting a U.S. postnup and you have Spanish assets, you’ll likely want to include the Spanish assets’ values in Euros and in USD.
- Immigration clauses: Not all countries laws will allow for clauses around immigration but you may be able to add some provisions related to timeline to citizenship and clarification of visa requirements.
- Language and translation: If one of the spouses is not native in the language that the document is written in, it’s likely that you’ll need an interpreter or a fully translated document to ensure that the person who doesn’t speak the language understands fully what they are signing.
This is just a general idea of what international couples might want to include in their postnup. There is no one-size-fits all for everyone, so make sure you consult with an attorney to determine what make sense for you and your spouse.
How to get started on an international postnup
It may all seem so overwhelming—where do we even start as an international couple? We get it. But don’t stress. Here’s a step-by-step process for getting your international postnup.
- Step 1: Determine what country your postnup should be governed by. This may involve speaking with an attorney in both countries. Most attorneys offer free 15-minute consultations, so this should be too much of a hassle.
- Step 2: Self-reflect on what your goals are for the postnup. Is your main goal to get clarification on financial obligations? Maybe its to protect a business. Whatever it is—solidify those goals.
- Step 3: Talk with your spouse regarding your specific goals and get an idea of what you both want to achieve together.
- Step 4: Gather financial documentation to support your domestic and foreign assets. If you have businesses and investment accounts in both countries, start gathering the financial statements and documents now. Your attorney(s) will ask for this at some point.
- Step 5: Pull the trigger on the postnup and select the country/attorneys you want to hire. Maybe you will need two contracts (one in each country) or maybe one country will be enough. Your attorneys will take the process from here and walk you through everything every step of the way.
Final thoughts on postnups for international couples
As you can see, getting a postnup as an international couple isn’t so scary! The main question you’ll need to answer is what country’s laws make sense for you. Then, you should hire attorneys to help you walk through the process. Easy peasy. International couples tend to include clauses around foreign and domestic assets, immigration, and country-specific laws. Everything else is generally pretty similar to a “regular” postnup. Getting a postnup is a great way to gain financial clarity with your spouse so you can focus on the more important things in life like traveling to all the cool countries!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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