You’ve done it! You’ve finally landed that remote tech job and now the road before you is wide open. Will it be van life? Or maybe you’re going international? Either way, your location can have a big impact on your prenup (who knew!). So, before you ride off into the sunset, read on for some important tips!
Digital nomads are people (read: millennials and zoomers) who travel the country/world while working remotely. The concept is on the rise post-COVID as many companies and employees have discovered that working from “home” is possible. Many are also taking a crack at freelancing. Perhaps surprisingly, the average age of digital nomads is 33, and up to 61% of digital nomads are married! (Patterson, 2022). This leads us perfectly into a prenup discussion!
Whether you and your fiancé plan on living a rootless lifestyle (van life, anyone?) or even just a temporary nomadic existence, there are important considerations for your prenup. Typically, when a couple executes a prenup in a particular state, should they ever need to enforce it (i.e. divorce), that state’s laws would be used to enforce the terms of the agreement. Easy peasy.
A “choice of law” provision in your prenup allows you to choose which state law you would like to govern your prenup in the event of divorce. Choice of law can be extremely important because every state has different divorce laws.
Check out this video by California family law attorney, explaining choice of law:
What is Choice of Law?
Choice of law provisions allow contracting parties to decide what state’s law will govern their agreement. For example, you can execute a prenup under New York law, because you live there. This makes sense because if you were to ever get divorced, the proceedings would occur in your state of residence, in this case – New York. However, in theory, if you ended up moving somewhere else, say, Massachusetts, then MA should apply New York law when analyzing your prenup in a divorce (depending on a few other factors). Keep in mind however, the state where the divorce is occurring will apply their standards of enforcement. So, even if your choice of law is NY, but you get divorced in MA, then MA will apply NY law to the contract, but they may apply Massachusetts’ standard of whether or not the prenup will be enforced at all. We know, it’s not quite as simple as it sounds. Keep in mind that each state has their own caselaw on the subject of enforcement, so if you have specific questions about your state, you should contact a licensed attorney.
Crossing the T’s, Dotting the I’s
First things first, if you decide New York law should govern your prenuptial agreement, you better make darn sure that you meet all of New York’s requirements for a valid prenup. This is especially important in states that have strict procedural requirements for prenups. For example, Minnesota requires that the prenup be signed by two witnesses and notarized. Step 1 to a valid prenuptial agreement is making sure you are in line with state requirements.
Consider also that states vary wildly on their financial disclosure requirements. Some states have very strict requirements for financial disclosures while others don’t require them at all. HelloPrenup suggests that you stay on the safe side of things by disclosing all your finances. Choosing not to disclose finances is a fast track to issues down the road. Research your state or contact an attorney to be sure that all of the requirements for a valid prenup are met.
Making the “Choice”
So, with all that said, what state should you select in your choice of law provision? Per usual, the answer to this legal question is… it depends. Generally, you want to select a locale where you live. Perhaps your family lives in Illinois and you and your future spouse plan to relocate there a few months after your wedding. If you still have no idea, you can consider speaking to a licensed attorney who can advise you. Keep in mind, most forum states require a connection between you and the state you elect to govern your prenup. It cannot just be a random state- that will likely get you in some trouble if the enforcement of your prenup is in question. For example, if you elect Oregon in your choice of law provision but you have never even been there and don’t have any connection to the state, a court may question whether Oregon law is really applicable.
Choice of law can be a very complicated issue especially if there are international factors at play. Enforcement of choice of law provisions vary state to state. There are many factors at play and every state is different. If you and your fiancé have any questions or doubts, be sure to consult an attorney on the subject prior to entering into your prenuptial agreement.
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