Which state do I choose for the formatted prenuptial forms?
Full Question:
Answer:
While all fifty states recognize prenuptial agreements in one form or another, state laws vary on the scope and enforcement of prenuptial agreements. There is a Uniform Prenuptial Agreement Act (UPAA), which approximately 26 states have adopted but, each of these states has included its own modifications to the UPAA. The remaining states have adopted their own statutes or apply case law.
Despite the varying requirements from state to state, the main considerations used by all courts include:
-it must be in writing, and meet certain technical requirements
- the agreement must be signed before the marriage, and a marriage must occur
- the agreement cannot include terms that are against public policy
- the agreement must meet standards for substantive fairness
- there must be the opportunity for legal counsel
-there must be financial disclosure
Agreements may minimize uncertainty by including a choice of law clause, directing what state's law will apply to enforcement of the agreement and what happens if the parties move from one state to another. These choice-of-law provisions are typically enforced, although some states do not consistently defer to these provisions.
Under conflict of law principles, the general rule is that the validity and the enforceability of the contract is determined by the law of the state where the contract was entered into, or the state whose laws the agreement specified will apply in a choice of law provision. This doctrine has been found to be applicable to prenuptial agreements.
However, there are exceptions to the general rules. The Restatement (Second) of Conflicts of Laws provides the following general statement of law that reflects the majority view of how state courts in the United States addresses this conflicts of law issue in the area of prenuptial agreements:
a court shall apply the law of the state chosen by the parties in most cases, unless the state has no substantial relation to the contract or unless the law of that state offends a fundamental policy of a state having a greater interest in the particular issue.
When a choice of law clause isn't included in the agreement, the majority approach, is that the laws and polices of the state having the most significant relationship to the transaction of the parties should be applied. Therefore, the application of the law will usually depend on the nature of the matter in dispute. For example, if the issue involves whether the document was properly executed, and is hence enforceable, a majority of states would apply the Restatement approach and apply the laws of the state where the document was executed or, if the agreement has one, the law of the state chosen by the parties in the choice of law provision. If the issue is one of substantive fairness at the time of enforcement, a court may decide public policy considerations prevent it from deferring to the state or country where the agreement was drafted or the state whose laws were chosen in a choice of law provision.
