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 apply in the event of divorce. Choice of law can be extremely important because every state has different laws related to prenups and the wrong “choice” could spell disaster.
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 law will govern the enforcement of their agreement. For example, you can execute a prenup in Louisiana with a choice of law provision that declares that New York law will govern the contract because you plan to relocate to New York. 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 living somewhere else, that state should also apply New York law when analyzing your prenup (depending on a few other factors).
Naturally, it’s not quite as simple as it sounds. There are a lot of considerations when drafting a choice of law provision!
Crossing the T’s, Dotting the I’s
First things first, if you decide that you want New York law to 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. If you want Minnesota law to govern your agreement, you don’t want your prenup thrown out from the get-go because you didn’t meet all the 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.
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 have the most connection. Perhaps your family lives in Illinois and you maintain an address there and plan to move there in the next year. Some of the factors to consider include: your current or future residence, business or work-related connections to the state, and the location of your property and assets. The more connections, the better.
Be aware that before you can file for divorce, you must meet the residency requirements for the state in which you are filing. That means that if you have not maintained residency in a particular state where you want to file, you are going to have to park yourself in your state of choice for typically at least two months before you can file for divorce there.
So, with that in mind, if you don’t plan on maintaining residency somewhere during your travels, it is important for you to consider where you would go to file for divorce in the future. If you know where that may be (i.e. you plan on eventually settling in California or returning home to Illinois), you can elect that state in your choice of law provision (assuming you’ve taken all of the above discussion into consideration).
If you still have no idea, you can also consider which state has the friendliest prenup and divorce laws for your situation. However, be aware that many forum states require a connection between you and the state you elect to govern your prenup. 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 whatsoever, 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 varies wildly. There are many factors at play and every state is different. At the end of the day, the court may decide to disregard your choice of law and you could be out of luck. 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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