So you and your partner drafted a prenup in Texas. But now you’re wondering, “What if we move to New York next summer or move to Colorado in a few years? Will our agreement still be enforced?” It’s like wondering if your beloved leather couch will work just as well in the living room of your new home as it did in the last one. Based on the measurements, it should, but you want to make sure. Similarly, you want to make sure your prenup holds up just as well in your new state as it would have in your previous state.
When it comes to prenups, there are some state and federal laws that could help ensure your prenup is upheld in a different state. And there’s even language that can be added into your prenup to help guide the enforcement of your agreement. But how can I be sure my prenup will be upheld in another state? Let’s dig into this topic together and figure out the answers to your questions and more!
Will my prenup be upheld in another state?
All 50 states plus the District of Columbia recognize prenuptial agreements as legally binding contracts. But prenups aren’t governed by federal law; they’re controlled by the laws of the state where the agreement was drafted. This means that enforcement could get a bit tricky if you move from the state where you wrote your prenup to a new state. If your agreement had been valid and enforceable in the state where it was executed, then it’s likely to be upheld in the new state. But the way a prenup is enforced or interpreted may change based on the new state’s laws.
Why would a different state uphold my prenup?
You drafted and signed your prenup in one state and now you’re moving to a different state. Now that you’ve learned prenups are governed by individual state laws, not federal laws, you might be wondering why another state would give credibility to a prenup that wasn’t created there. There are several laws and contract clauses that encourage states to respect contracts drafted and signed in other states.
Choice of Law Clauses
All contracts, including prenuptial agreements, should include a choice of law clause, also known as a governing law clause. This clause allows you to choose which state’s laws will govern the enforcement of your prenup. Courts usually honor a choice of law clause if there’s a meaningful connection to that state and the terms don’t go against public policy.
For example, if you sign your prenup in New York but end up getting a divorce in Massachusetts years later, a Massachusetts court will have jurisdiction over your divorce. But if there’s a valid choice of law clause, the Massachusetts court will need to apply the laws of New York when interpreting and enforcing your prenup. For example, in the 2019 Massachusetts case of Marshall v. Marshall, the Massachusetts Court of Appeals applied Pennsylvania law to interpret a prenup created in the state of Pennsylvania even though Massachusetts treats asset appreciation differently (Marshall v. Marshall (2019)).
Full Faith & Credit Clause
Thanks to the Full Faith & Credit Clause of the United States Constitution, prenups drafted in one state are generally upheld in another state. This clause requires that each state respect the judicial proceedings of every other state (U.S. Const. art. IV, §I ). But, it’s important to understand that some states interpret prenup language differently and have different requirements for prenups to be enforceable upon a divorce. If a prenup contradicts the public policy laws of the new state, the offending provisions could be thrown out even if the prenup was valid and enforceable in its original state.
Let’s use an example to help illustrate this principle: Brian and Sara executed a prenup in Texas, where community property waivers are not required. A few years into their marriage, they moved to California, and Sara eventually filed for divorce. California has stricter laws regarding the enforcement of prenups, and courts there would want to see that there was full financial disclosure and that each spouse had independent legal representation prior to signing. These factors could affect the way the court enforces the prenup.
In a 2010 Florida case, McNamara v. McNamara, the Fifth District Court of Appeals applied Georgia law, confirming that it wasn’t against Florida’s public policy. The court focused on whether the original agreement was entered into voluntarily with full and fair disclosure of financials and whether the terms, if applied through the lens of Georgia law, violated Florida law. The fact that one party benefited more from the terms of the prenup than the other party did not violate Florida law.
Uniform Premarital Agreement Act
In addition to the Full Faith and Credit Clause in the U.S. Constitution, there’s another federal statute that encourages states to uphold prenups from other states. Most states in the United States. (29 states plus Washington D.C. to be exact) have adopted the Uniform Premarital Agreement Act (UPAA). This means that these states abide by very similar laws regarding the enforcement of prenups. A main motivation for creating the UPAA was to accommodate the type of situation we’re discussing in this article: Will my prenup be upheld if I move to another state? As you can imagine, this was a common question couples had long before the creation of the UPAA. Having uniformity among states regarding the requirements for valid prenups is extremely helpful given how often couples move from their original location.
Under Section 6 of the UPAA, if a prenup was validly executed in one state, it should be upheld and honored by the courts of another state where a couple lives when they get a divorce. Since these states have the same or very similar requirements for a prenup to be valid and enforceable, it’s highly likely that your prenup will be upheld if you’re moving from one state that follows the UPAA to another state that follows the UPAA. But don’t forget that even states that have adopted the UPAA have laws that differ in some unique ways. So, although a court might uphold your prenup, it might enforce it a bit differently than your original state would have.
One thing is clear, before moving to a new state, you should make sure your prenup was validly executed in the state where it originated. Let’s discuss the requirements for a valid prenup next.
What are the requirements for a valid and enforceable prenup?
Whether or not a state has adopted the UPAA, all states generally agree on the basic requirements for a valid and enforceable prenuptial agreement.
Prenups must:
- Be in writing
- Be voluntarily signed by both parties
- Include full and fair disclosure of the financial assets and obligations of both parties
- And not be severely unfair (i.e. unconscionable)
If a prenup abides by the above requirements, was not unconscionable at signing, and does not violate public policy upon enforcement of the prenup in the new state, then it should be upheld by the new state, with the exception of a few unique rules in select states.
What if your prenup doesn’t have a Choice of Law clause?
If your prenuptial agreement doesn’t have a choice of law clause, then it’s possible that the state you and your partner live in when divorcing will apply its laws when interpreting the language of the prenup. If the new state throws out the prenup because it was either invalid in the original state or because it violates the public policy laws of the new state, the new state would distribute the couple’s property based on its property distribution laws. In the United States, courts divide marital property through either the laws of community property or equitable distribution.
Nine states distribute property under the community property standard. In these states, property acquired and debt incurred during the marriage are presumed to be marital property. Courts divide this property equally, which generally means 50/50. Courts in equitable distribution states distribute marital property as they deem fair and equitable. This doesn’t necessarily mean 50/50. Talk to a lawyer in the state you’re considering moving to in order to find out which laws apply in a divorce.
Are there steps I can take to ensure my prenup is upheld in another state?
Absolutely! If you are planning to move to a new state, talk with an attorney who is licensed to practice law in that state. Have them review your prenup to make sure it abides by local laws. This attorney should also be able to advise on whether you need to adjust any of your prenup terms to better fit the laws and public policies of your new state. You can also make sure there’s a valid choice of law clause if you’re hoping your new state will apply the laws of your original state when interpreting your agreement. While you’re at it, it would be wise to talk with an attorney in your original state to make sure that your prenup was validly executed and the terms were not unconscionable at signing.
If your prenup needs to be revised in order to be enforced in the way you originally intended, these revisions could be done through an amendment of your prenup in most states. For an amendment to be valid, both you and your partner need to sign and date the amendment, and follow any other state requirements in your new state. You should also abide by the same formalities that you applied when executing your original prenup. Therefore, if you both hired independent attorneys and signed in the presence of a notary, use the same process for the drafting and execution of your amendment. Make sure you consult an attorney experienced in prenups to help ensure your amendment abides by local state laws and by the laws and policies of the state where you’re planning to live.
The gist of moving out-of-state after signing a prenup
If you move to a different state, your prenuptial agreement will likely be upheld in the new state due to a choice of law clause or because federal laws like the Full Faith and Credit clause of the U.S. Constitution and the principles of the UPAA Fair encourage states to uphold and respect the judicial proceedings of other states. However, to be upheld in a different state, your prenup must have been validly executed in your original state and its terms must not violate the new state’s laws or public policy. Generally, prenups are upheld by other states. But a court might choose to enforce the terms of your prenup differently than you anticipated if the terms violate their laws. Okay! You’ve learned a lot. Now you can clean out the garage, gather moving boxes, and load up your moving van confident that your prenuptial agreement will survive the move!
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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