Prenuptial Agreement involving the USA, Germany and Switzerland

More and more marriages have foreign connections. Be it that spouses of different nationalities get married or that they move abroad. Be it from the USA to Germany or Switzerland, or from these countries to the USA. An important task of a lawyer specializing in international family law is to advise future spouses on drawing up a prenuptial agreement. However, a prenuptial agreement can also be drawn up at any time later during an existing marriage, e.g. if one spouse sets up a company. We can also represent you in drafting and enforcing a separation and divorce settlement agreement in the event of a separation and/or impending divorce.

If you are planning to move to the USA, it is essential to check whether your existing prenuptial agreement should also be adapted in accordance with US state regulations. If US citizens move to Germany or Switzerland, it is also necessary to check whether the US prenuptial agreement would be effective in the event of a divorce. To ensure that your agreement is as effective as possible, it is essential to seek advice from a competent lawyer.

Family law is structured differently in the 50 states of the USA, but all recognize prenuptial agreements in principle if they meet the requirements of the respective law. Since family law itself varies from state to state, each state has established different criteria for determining the validity of a prenuptial agreement. The courts also apply these to marriage contracts originating from abroad.

A main criteria in many states is that each spouse has been sufficiently informed about the economic and financial circumstances of the other (“full and fair disclosure”). To this end, it is advisable to attach a detailed list of the assets and income of the future spouses to the marriage contract.

In addition, the prenuptial agreement must not be unfair – for example, because it exploits the economic hardship of the other party – or unreasonable, which would make it immoral.

In the case of foreign prenuptial agreements, US courts like to see that the spouses were advised independently of each other (“independent legal advice”). We will be happy to put you in touch with one of our competent colleagues to represent the other spouse.

The most important aspect of the marriage contract is the choice of applicable law. The marriage contract should be drafted in such a way that it is compatible with the laws of the country/state in which the spouses wish to live later, have the most business relationships or in which the majority of their assets are located. 

Marriage contracts must always be notarized by notaries. However, not all German notaries are prepared to notarize marriage contracts if one of the future spouses is a US citizen. The reason for this is the increased liability risk for notaries. Not every professional liability insurance policy covers advice on non-European law as a standard. Since claims for damages under US law can be high, the insurance premiums are correspondingly high.

We will be happy to draft your prenuptial agreement together with you and then put you in touch with a notary who regularly takes on cases involving the USA.


Katharina Kutter

As an attorney for family and inheritance law and have specialised in advising companies and high net worth individuals in the areas of asset succession, asset division, tax law and family law retirement planning – with a particular focus on cross-border matters. 

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