Foreign prenup validity in the USA.

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Foreign prenup validity in the USA.


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Old 13th February 2020, 07:50 PM
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Default Foreign prenup validity in the USA.

Hello,

I am French and my wife is American. We got married a few years ago in France, where we signed a prenup in front of a lawyer ("notaire"). We chose the "separation des biens" law (separation of wealth) as I have more assets than my wife and our relationship has not always been stable, although it's much better now.

Now we got married during vacations in France and we thought we would move to France to live there... but we didn't. So we never lived in France, and we've always been living in Massachusetts.

We didn't do any paperwork in the US, but I was told by Turbo Tax that since we filled our taxes as married we are officially married in the US.

Assuming we stay residents of MA:

1) Is the french prenup valid in Massachusetts?
2) If not, can my assets in France be seized in case of a divorce?
3) What about assets inherited after the marriage?

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Old 13th February 2020, 09:22 PM
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A marriage in France is certainly recognized and considered valid in the US, no matter what state you are living in.

And while the French marital regimes aren't actually the same as American "pre-nups" I think you can probably fall back on the contract for US fiscal matters and probably also in case of a divorce (though the grounds on which you were divorcing might come into play). Your total assets may well come into consideration when setting any support payments or alimony in case of a divorce, and anything you inherited in your own name would also come into consideration when setting support or alimony payments - but normally assets in your own name would not be considered part of any "community property" given the separation of property agreement.

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Old 13th February 2020, 09:57 PM
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The reality is that any contract or agreement can be contested, and the chances of that tend to be higher when there is any acrimony in the relationship.

I am not familiar with MA, but in some States there are specific requirements related to the timing, content and form of these sorts of agreements. But generally they won't throw them out if they are not.

A primary question if a prenuptial agreement is challenged in Family Court, (or its local equivalent) the court will try to determine if the parties understood what they were signing.

If yes, then so long as that agreement does not break local law then it is likely to be upheld.

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Old 14th February 2020, 03:22 PM
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1) Is the french prenup valid in Massachusetts?
No, pre-nups are based on US state law

2) If not, can my assets in France be seized in case of a divorce?
Yes

3) What about assets inherited after the marriage?
Again, falls under US state law

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Old 15th February 2020, 07:23 AM
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A court will not find the agreement unenforceable simply for the fact that it was executed in another jurisdiction. A Massachusetts Court (any court for that matter) can find a prenuptial agreement unenforceable for a wide array of reasons.

I had a bit of time to kill, so I did a bit of investigation...

Setting aside all of the obvious reasons while it might be found unenforceable (not written, coerced etc) there are probably two key items that might invalidate it in part or in total.

First one would be provisions that are legal in France but illegal in MA. I imagine that the change of that is small but it is there. I expect that if that were to be the case then the provision would be struck out, not the entire agreement. An obvious example would be a "no child support" clause for example (assuming it was legal in France) would be struck out.

The other point I discovered is that in MA an agreement must be found to be fair and reasonable both at the time it was signed before the marriage and then again at the time of divorce. This is probably the greater risk to the OP - particularly given the mention of a disparity in assets before the marriage, and an inheritance that might exacerbate that.

The Second Look, as it is sometimes referred to is to ensure that the agreement “has the same vitality at the time of the divorce that the parties intended at the time of execution.”

This is to protect against agreements that, due to a change in circumstances between when the agreement was signed and the divorce, will result in unconscionable (not “fair and reasonable”) outcome that was not intended.

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Old 15th February 2020, 07:49 AM
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I think one of the issues here that really clouds everything is that the "marital contract" that the OP is referring to isn't really a "pre-nuptual agreement" in the US sense of that term. Entered into before the marriage, it's actually part of the terms and conditions of marriage in France.

I have no idea to what extent a French marital contract would be honored in a US divorce, though I suppose the existence of such a contract is worth noting in divorce proceedings. But these things aren't freely negotiable contracts in the US sense. You have a choice of 6 (or so) standard contracts with little or no room for personalization. (I suspect a US court might throw it out on that basis alone.)

In the US, as I understand it, each state has its own "assumptions" about property ownership in a marriage (think community property state) that, I suppose, could be overridden by a valid pre-nup. But as I understand it, it's the property division laws in your state of residence that hold sway at the time of any divorce - say if a couple moves to a community property state from a common law state.

I'd be interested to see if there are any cases where a divorcing couple has invoked a French marital contract when dividing up their assets.

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Old 15th February 2020, 08:27 AM
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One further thought on the French marital regimes:

In France, when there is a property division (i.e. at divorce or the death of one of the couple), the notaire has to determine the marital regime of the couple at the time they were married, unless there is a more recently registered change of regime.

If a couple in France were married in the US, for example, but were divorcing in France, the notaire would need to determine the "default regime" for the state in which the couple got married.

In the US, the state "default" rules that apply are those of the state in which the couple currently lives. Which might mean that the French marital contract wouldn't be considered at all. Definitely something that would need to be discussed with a divorce attorney.

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Old 17th February 2020, 08:26 PM
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Thank you guys for your research and replies. My contract in France is a standard "separation of wealth" meaning no wealth is shared except property purchased in common. I don't know if Massachusetts would call that unfair but it's pretty standard.

According to your answer it looks like it would be more or less a gamble, not in my favor.

So my follow up questions are:

1) Are we 100% sure I'm technically married in the US just by filling my taxes as such? We signed no marriage documents in the US.

2) If so, how do I protect my assets? Do I do a postnup agreement?

3) If so, is the lawyer going to make me go through all my assets or they don't care since they stay mine?

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Old 17th February 2020, 09:52 PM
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A foreign marriage, which it was properly solemnised according to the laws of that country, will be recognized in the US. You don't need to have signed any marriage documents in the US.

How you file your taxes has no bearing on this except in that it restricts your ability to file as "single"


If you wanted to reduce the risk, I guess you could always seek proper advice in MA and then take whatever mitigation is recommended.

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Old 17th February 2020, 10:31 PM
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As Moulard says, a marriage celebrated and documented in another country under its laws is recognized in the US without the need of filing any documents or "registering" the marriage.

The fact that your assets are titled separately means that they belong to whichever of you has their name on the ownership documents. Massachusetts isn't a community property state, so that's not an issue. Assets each of you brought into the marriage should already have clear title to one or the other of you. And assets acquired during the marriage should be titled clearly as well. The one possible area of "community property" could be bank or other financial accounts held jointly - like those where either of you can make withdrawals without needing the signature of the other. The rules in the US for division of those sorts of accounts are very different from France.

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