Which State Law Governs Pre-Nup: Marrying in STATE A, live in STATE B. Which state's laws are the ones we would fall under?
Great question. Too few people pay attention to the issues of determining with their lawyers which state law governs. Whether for a prenuptial agreement, postnuptial agreement, mid nuptial agreement, or divorce, state law issues are becoming increasingly important. The old days of June and Ward Cleaver living in the same house for ever are pretty rare.
Do you live in state B now? Will you be living in State B after you marry? Is it that you are only going to State A for the wedding? If that's the case then your ties are really to state B and that is likely to be the state law governing your relationship. If that is the case you should hire lawyers in State B, have them confirm that State B, not State A law governs, recite in the prenuptial agreement that you are both resident and domiciled in State B and although you plan to marry in State A you will reside and be domiciled after the wedding in State B and wish State B law to govern regardless of the fact that the marriage took place in State A.
The question you raise is a good one that might even be more complex. What if the facts are above but you're a same sex couple. You might opt to get married in State A that recognizes same sex marriages, but live in State B. In such a case the validity of the marriage and the impact of State A law will depend on State A and B law. State A may not recognize the marriage regardless of State A law.
As society has become more fluid and residences change more commonly the issues of which state law governs become more complex, and more important. What if after the marriage you live only a few months in State A then move on to State C? The prenuptial agreement should clearly indicate which state law governs even if there is a move. Further, what happens if the states involved have substantially different laws governing the use and validity of prenuptial agreements? It might be advisable even if you have State A law applying that you comply with requirements of other states as well. For example, if State A says that the prenuptial agreement is valid if notarized, but State B requires a each of your attorneys to sign and attach a full financial statement for each, perhaps you should do all of the above.
Some marital related issues, such as the spousal right of election (how much property a surviving spouse must inherit from the deceased spouse) may be considered issues that states have an important interest in protecting. Thus, some aspects of the prenuptial agreement you are considering are vital to address with specificity. Be sure to ask your family lawyer whether the designation in the prenuptial agreement will control what the states involved might do on key issues.
Get some good matrimonial (family law) attorneys that will sort this out for you and give some thought when you meet with them to the suggestions above. Before your initial interview with your attorney, list all of the different possible contacts each of your and your spouse to be have with various states, the likelihood of moving in the near future and other relevant facts.
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