A prenuptial agreement (“prenup”) is an contract signed by both spouses-to-be before marriage. The general purpose of a prenup is for future spouses to agree to certain rules for property and asset distributions in the event of death or divorce. For instance, a couple might agree to waive rights to alimony or set monetary limits to alimony. Some couples agree to exclude certain property from being considered marital property. This could be an inherited family estate or business. Meaning, this property would not be subject to division in the event of divorce.
A foreign contract is one that was executed outside of Florida. This can be an agreement from another state or country. In the case of foreign foreign prenuptial agreements, one question that frequently arises is whether the agreement is valid and enforceable in Florida. In short, “yes” is the answer. Prenups are contracts; Contracts signed in other states or foreign countries are enforceable by Florida courts. However, there are some caveats. Courts give prenuptial agreements a higher level of scrutiny than business contracts. This is because:
- Prenups involve personal rights (to property, for example)
- There is a higher risk of overreach and undue or nefarious influence in the making of a prenup and
- Often, prenups are signed in the absence of legal representation
For a foreign prenuptial agreement to be valid in Florida, wo legal requirements must be met. First, the prenup must be valid in the jurisdiction when and where it was signed. Second, the prenup must not counter to Florida public policy. The courts will use the “choice of law” doctrine, to evaluate a foreign prenup in relation to Florida public policy.
What is “Choice of Law”?
Every nation and every state in the US enacts various laws. Sometimes the laws are the same, but most often, the laws are different. Sometimes, in a given situation, different laws might apply and the different laws might be in conflict. When that happens, a court must make a choice between the competing laws.
Take a simple example related to speed limits. In parts of Germany, there are no speed limits for automobiles on the autobahn, the German freeway system. By contrast, in Florida, we have speed limits on our highways and freeways. Imagine a German tourist comes to Florida and drives 120 miles an hour down I-75. Of course, Florida Highway Patrol will pull over the tourist and issue a ticket. Now imagine that the tourist is standing before a Florida judge and attempts to escape paying the fine by stating: “But, in Germany, I can drive 120 miles an hour.” The judge will rightly and quickly respond: “Yes, but this is Florida and you can’t drive 120 miles an hour in Florida.”
Simply speaking, the judge faced a choice of law problem. In theory, German law might apply to a German citizen, but the citizen was driving in Florida. With two conflicting laws, which law should apply? In our example, the Florida judge chose to enforce Florida law since Florida has a higher interest in protecting its citizens on its roads and highways.
Why is Choice of Law Important?
The same choice of law analysis applies to prenuptial agreements. Take an example involving a prenup and a waiver of spousal support. Imagine that, in 1984, the couple married in a Midwest state. Their agreement states that in event of divorce, neither spouse could seek alimony or any sort of spousal support. In 2000, the parties moved to Florida and now are seeking divorce. The divorcing spouse asks the Florida judge to void the portion of the prenup waiving the right to alimony.
In making its decision, the Florida judge will engage in a choice of law analysis. Likely, the judge will rule that Florida law should be applied since the couple lives in Florida. After deciding the choice of law question, the judge will make a decision about awarding alimony based on Florida law. Under Florida law, alimony can be waived if certain conditions apply. Whether the spouse seeking support will become a dependent of the state is one consideration. Also important, is whether the prenup was signed under any sort of duress or fraud.
Therefore, foreign prenups are enforceable in Florida, but will be subject to a high level of scrutiny and to a choice of law analysis.
For a Closer Look at Your Prenuptial Agreement, Call Us Today.
Legal issues with respect to foreign prenuptial agreements are complex and can make a substantial impact on your future. If you need to know your rights under a prenuptial agreement, then consult a top-tier Florida family law attorney. Whether the contract was created in Florida or abroad, contact us by calling (407) 574-2573 or sending us a private message through our secure contact form. Appointments are available by telephone or video-conference for your safety and convenience.
