§ 4.08 Conflict of Laws and the Validity of a Marriage Contract

• Jurisdiction: United States
• Publication year: 2021

§ 4.08 Conflict of Laws and the Validity of a Marriage Contract

[1]—Agreements Signed in the U.S.

As divorce agreements have become more accepted, conflict of laws issues have become more frequent. The most common problem has been whether the law of the place of execution or that of the divorce forum will determine the validity of a contract.

The answer to this question could be significantly affected by whether the contract included a governing law provision. Party choice of law will probably be honored, unless the parties have no connection with the state whose law is chosen⁴⁴⁰ or unless a provision of the chosen law violates an important public policy of the forum.⁴⁴¹ For example, if the spouses resided in Egypt or some other jurisdiction whose marital property law was generally very favorable to men, it is unlikely that a court would enforce such a choice of law provision, even if the spouses were domiciled there at the time the agreement was signed, if the parties later changed their domicile to the U.S. Aside from this concern, if the contract specifies what law governs the enforceability of the agreement, that law generally would determine the validity of the agreement.

If there is a choice of law clause, this is normally construed to apply the law that will be used to determine whether to enforce the agreement, rather than the law that will govern the parties' rights during marriage.⁴⁴² When there has been a governing law provision, courts in Alabama⁴⁴³ and New York⁴⁴⁴ have applied the law of that state to determine whether to enforce an agreement. States have enforced governing law provisions even if the law chosen differed from forum law. For example, in New Jersey,⁴⁴⁵ Iowa,⁴⁴⁶ and Nebraska⁴⁴⁷ cases, courts enforced marital agreements due to governing law provisions where the agreement would have been invalid under forum law. Governing law provisions have been followed in many cases.⁴⁴⁸ If the law chosen violates an important policy of the forum, the forum court might decide to apply forum law, not the law selected by the parties.⁴⁴⁹

If no governing law provision is included in the agreement, normal conflict of laws rules will govern. Although states apply different conflict of laws approaches, most agree that questions pertaining to execution formalities, such as acknowledgment and the number of witnesses, should be governed by the law of the place where the contract was signed.⁴⁵⁰

It is less clear what law would govern questions of substance. On one hand, it could be argued that spouses generally make marital contracts pursuant to the law of the state of execution, so it would be unfair to apply another law to determine the validity of the contract. Pursuant to this view, applying the law of the state of execution would be consistent with the parties' expectations.⁴⁵¹ This approach also would discourage spouses from shopping for the most desirable divorce forum.⁴⁵² Even so, the divorce forum has a substantial interest in assuring that both spouses will be economically secure post-divorce. Thus, the forum may be tempted to apply its own law if the contract is valid under the law of the state of execution and invalid under the law of the forum, and the contract does not provide adequately for a dependent spouse who will be a resident of the forum after the divorce.⁴⁵³

An Ohio case involved a postnuptial agreement signed by Ohio domiciliaries in New Mexico. The agreement did not contain a choice of law clause. The agreement provided that neither party should have a claim to the other's estate upon death, and their property should pass as if they were unmarried. Shortly thereafter, the husband died in Ohio. The wife's postnuptial waiver of rights in his estate was valid under the law of New Mexico and invalid in Ohio. The court applied Ohio law because it was the spouses' marital domicile.⁴⁵⁴

A Tennessee case involved a challenge to the validity of a premarital agreement signed in Florida. The agreement contained no choice of law clause. The agreement was valid under Florida law but invalid under Tennessee law due to inadequate disclosure. The court applied Tennessee law and invalidated the agreement.⁴⁵⁵ In a similar case, a Missouri court applied forum law after it concluded that Missouri had the most significant relationship with the parties.⁴⁵⁶

In an Iowa case, the wife had signed a postnuptial agreement in Florida, waiving her right to an elective share of her husband's estate. They later moved to Iowa and the husband died. The waiver was valid under Florida law and invalid in Iowa. The court enforced the agreement due to the Florida choice of law clause, concluding that Florida law did not violate a fundamental policy of Iowa.⁴⁵⁷

A Florida case involved a premarital agreement that contained a Georgia choice of law clause. The agreement contained a provision that the wife waived her right to court-awarded attorneys' fees if they ever divorced. The Florida court held that while such a waiver was valid under Georgia law, it would apply Florida law because the Georgia law violated an important Florida policy.⁴⁵⁸

It is unclear whether a choice of forum clause in a marital contract would be enforced.

In a New York case, the parties signed an agreement that any divorce action involving the parties had to be filed in Israel. The New York court enforced this choice of forum, where the wife (an Israeli citizen) argued that the court should not enforce the provision because no-fault divorce was not available in Israel.⁴⁵⁹

[2]—Agreements Signed Outside the U.S.

A related problem is presented if the parties married in another country and selected a marital property regime according to the accepted procedures of that country. For example, in many civil law countries spouses have the right to choose a regime of separate property. The effect of such a choice is that if the parties divorce, property accumulated during the marriage cannot be divided. If spouses do this, and then later move to the United States and divorce, it is unclear whether a United States court would honor the premarital election of the marital regime.

In some cases, courts have determined the enforceability of such agreements by applying the law of the country where the parties married;⁴⁶⁰ other courts have applied forum law.⁴⁶¹ A New York Court considered it important that the parties had kept their money separate throughout the marriage, which was consistent with the original agreement.⁴⁶²

For example, a Maryland case involved a Pakistani couple who had signed some type of agreement when they married. Expert testimony was presented to the effect that, under Pakistani law, if the parties divorce, the wife has no claim to any of the husband's property unless such a right is set forth in the marriage agreement. The marriage agreement set forth no such right. When the wife filed for divorce in Maryland, the husband went to the Pakistani Embassy in Washington and performed a "talaq," an informal divorce procedure without...