The Uniform Premarital and Marital Agreements Act

Those responses may be all a matrimonial practitioner can offer to basic questions about a pre-nuptial agreement: “Is our agreement binding?” “Do I have to disclose all my assets?” “Can we sign it on the morning of the wedding?”

The answers to those questions depend, among many other factors, on the jurisdiction whose law will be used to determine whether the agreement is enforceable. It can be difficult ' if not impossible ' to determine which jurisdiction that will be. The agreement could be tested in the courts of any state where an action for divorce might be filed. Even at the time of marriage, the practitioner could have several such jurisdictions to consider. For example, the couple might have homes in two different states; they might sign their agreement in a third state and celebrate their marriage in a fourth. To craft an enforceable agreement, a practitioner must consider the choice-of-law rules and perhaps the substantive laws of all those four states. Even so, a divorce action might be filed decades later, at which time the parties could be living, and therefore litigating, in a fifth state that neither of them could have anticipated when they married. (The even more serious questions faced by couples who cannot say in what nation they will live are beyond the scope of this article.)