It is a task of the lawyer in family law but also of the notary to advise future spouses in the preparation of a marriage contract or to represent the spouses in the drafting and enforcement of a divorce settlement agreement. In Germany, contracts between future spouses are referred to as a “marriage contract” and spouses’ agreements for the period following separation or legal force of divorce are referred to as “divorce settlement agreements”.

Increasingly, lawyers and notaries also have to deal with agreements of spouses who have foreign nationalities and / or who have a concrete desire to return to their home country or who intend to emigrate. As a result, advice on international recognition of marriage contracts should be reviewed.

This is already difficult in the United States because the effectiveness of prenuptial agreements or postnuptial agreements differs from state to state. In the United States, marriage contracts have only been recognized since the 1970s as it has been thought to date that marriage contracts would not be compatible with public policy as they would expose the institution of marriage too easily.

It was the Florida Supreme Court of Justice in the Posner v. Posner rejected this doctrine and described marriage as a relationship of responsible persons which must enable them to shape the marriage according to their personal ideas. As a result of this decision, marriage contracts in all states gained acceptance.

Today, marriage contracts are generally considered admissible in all states of the US as a means of shaping the legal consequences of marriage but there is disagreement over the recognition of marriage contracts in detail. The approach to recognition and enforcement of a marriage contract varies greatly among the federal states. States have developed different test catalogs to determine effectiveness. A key criterion for the ultimate court (at least in some states) in assessing the marriage contract is whether each spouse has been sufficiently informed about the economic and financial circumstances of the other. There are other factors in assessing the effectiveness of a marriage contract which include, for example, certain formalities.

If a marriage contract is agreed in Germany – if a future residence or center of life is planned for the USA – the extent to which this would be “adjusted” in accordance with the US regulations when concluding a marriage contract in Germany or which concrete steps should be determined beforehand should be undertaken in advance in order to guarantee the highest possible effectiveness of this agreement.

Contact our lawyer Ms. Vera Mueller.