Pasternak & Fidis Reporter

June 20, 2017

Premarital Agreements and the Migratory Couple

A premarital agreement is a contract between persons intending to marry.  It determines spousal rights when the marriage ends by death or dissolution.  All states enforce properly made premarital agreements.  However, laws governing validity vary among the states.  What if a couple signs a premarital agreement in Virginia and later moves to Maryland?  Will a Maryland court enforce the agreement even though Maryland law of validity imposes a higher standard than Virginia law?

Contract law permits the premarital agreement to choose the law that will govern a dispute about validity of the agreement or enforceability of a specific provision even when the dispute must be resolved in another state’s courts.  Can the couple rest easy, knowing the law chosen in the contract—Virginia law in the example—will determine their rights?

Contract law also permits the court where a deceased person’s estate will be administered, or where a divorce is filed—the forum court—to reject a contract’s chosen law if applying it would violate a fundamental policy of the forum state.  In such an event, the forum court may choose to apply its own law.

Some states have more demanding requirements for a valid agreement.  For example, some states’ laws permit enforcement of an agreement that was extremely unfair (unconscionable) at execution; other states do not.  Some states, have more rigorous procedures for validity; for example, a requirement for access to counsel prior to signing.  Some states do not enforce a spousal-support waiver.  Some allow a judge at divorce to consider whether an agreement has become unfair since the date of marriage as a result of changed circumstances; this is known as the second-look.  In these states, a court can refuse enforcement of the agreement in its entirety or can make provisions for a property or support award to the economically weaker party at variance with the agreement.  In another group of states, a court may consider only whether a spousal support waiver has become unconscionable as of divorce.

What if a spouse dies as a resident of another state or one spouse files for divorce and that state:

  • has higher standards for validity of premarital agreements;
  • permits a second-look at divorce as to disposition of property and spousal support or only as to spousal support;
  • does not enforce a spousal-support waiver?

Will the forum court apply the chosen law or its own law?  Because there are so few cases from state courts of appeal that have resolved such a conflict, there is little guidance about when a court in a forum state will refuse to apply the law chosen by the parties in favor of the law of the forum on fundamental public policy grounds.  The best protection comes from complying with the highest standards, even when the agreement is to be governed by the law of a state with lower standards.

Best Practices.  A successful challenge to the validity of a premarital agreement is rare, even when the process leading to execution was sloppy and the substantive terms were unfair at execution and remain so at death or divorce.  Still, parties can reduce the risk of litigation and the unknowns associated with a possible move to another state with different laws.  A fair process and a fair result is likely to better serve both parties to a premarital agreement, especially when there is a significant disparity in resources.

Timing of Presentation.  The proponent of the agreement should start the process early so that he or she can provide a proposed draft of the premarital agreement to the other party well in advance of the planned wedding date.  This should give the recipient of the agreement enough time to get legal advice and negotiate the terms.

Access to Counsel.  Ideally both parties will have lawyers.  The proponent should do everything within reason to encourage the weaker party to get legal advice, including writing and encouraging him or her to do so and, in appropriate cases, agreeing to pay his or her legal fees.

Actual Negotiation.  The recipient should have a meaningful opportunity to negotiate the terms.  A meaningful opportunity to negotiate requires time, legal representation, and a proponent open to considering proposed changes.

Financial Disclosure.  The proponent should make a written statement that identifies major assets with values where readily available, and with fair estimates of value where they are not, and includes amounts and sources of income.  Statements of value should be qualified to the extent the value of a given asset is not readily ascertainable.  The disclosure should be attached to the agreement as an exhibit and both parties should initial the disclosure.

Fairness of Terms.  An agreement that makes reasonable provisions for an economically weaker party can help to insulate it from a successful attack.  To be fair, the agreement need not align with the law that would apply at divorce or death in the absence of a premarital agreement.


Premarital agreements are highly enforceable.  A party who obtains such an agreement prior to entering into marriage can have a high degree of confidence that it will be upheld as valid in a state other than that of the chosen law.  Nevertheless, there is some uncertainty for all couples who enter into a premarital agreement and then go to live in another state whose laws may demand more procedural or substantive fairness than that of the chosen law.  The interests of parties to an agreement will be better protected when the process leading to execution is fair, with access to counsel and sufficient time to consider the terms and negotiate for changes.  Moreover, parties will be better served by an agreement that makes reasonable provisions for an economically weaker party when there is a significant disparity in resources at the outset.

May 26, 2017

On your way to the altar . . ., don’t forget to get married!

The trend in recent years has been toward greater creativity in marriage ceremonies, including locations, vows, and officiants. In personalizing the ceremony, it is important to keep in mind that the legal requirements for marriage are set forth in the laws of each jurisdiction, both as to the qualifications for a person to marry and the legal steps necessary to ensure that the marriage is valid.

Historically, marriage has been subject to the control of state legislatures (in the District of Columbia, the City Council). Statutes set forth the requirements for who is allowed to marry, the required procedure to marry, and the legal effects of marriage.  Spouses who marry in religious or other ceremonies that do not comply with the statutory requirements may be… MORE >

May 25, 2017

Form I-864, the Sponsored-Immigrant Spouse and Death and Divorce

In the modern world it is increasingly common for an American citizen to marry a foreign national. In some situations, the United States citizen spouse or permanent resident may sponsor the other for permanent resident status (often referred to as a “green card” for the color that the physical document was at one time).  The decision to do so can have lasting consequences in the event the marriage ends.

A sponsoring spouse must fill out an Affidavit of Support under Section 213A of the Immigration and Naturalization Act – commonly referred to as a Form I-864. A Form I-864 is a contract between the sponsor and the United States government that requires the sponsor to support the immigrant if the need arises.  Spouses commonly sign… MORE >

May 24, 2017

How Divorce Affects Your Estate Planning Documents

After a divorce, the last thing on most people’s minds is contacting their estate planning attorney. However, if you fail to revise your estate planning documents after your divorce, your former spouse might still be a beneficiary of your estate and may continue to be a fiduciary under your will, revocable trust, power of attorney, or advance health care directive. Below is a table that summarizes how divorce affects these documents under D.C., Maryland, and Virginia law.

  D.C. Maryland Virginia Wills Divorce and final property settlement revokes the entire will. If the testator does not execute a new will, or republish his or her old will, he or she will die intestate. Divorce revokes all provisions of a will relating to the former spouse,… MORE >

May 10, 2017

P&F Community Service Day at Red Wiggler Farm

The word “service” has special meaning at Pasternak & Fidis – and it applies to community involvement as well as to our clients and to our profession.  In recognition of the firm’s commitment to community service, we closed our offices on May 9th for a day of volunteer work at Red Wiggler Community Farm.  We (gladly) exchanged our briefcases, law books, and business attire for hoes, shovels, and workwear to spend a day outdoors working alongside – and at the direction of – the wonderful, hardworking staff and growers of Red Wiggler, many of whom are disabled members of our community.

Red Wiggler is a working farm located in Germantown, Maryland, which supports youths and adults with and without disabilities with employment and vocational training… MORE >

November 30, 2016

Privacy and the Courts

Most of us are concerned with protecting our personal information from getting into the wrong hands.  We take precautions to protect our privacy such as password protecting computers and mobile devices, using passwords for online services, limiting personal information on social media profiles, and carefully choosing when to give out social security numbers and birth dates.

Court files are public records. Most such files are available to be reviewed in person by any member of the public; eventually they may be accessible over the internet. If you are ever a party in a legal dispute you may be concerned about how to protect your personal information from becoming available in a public record.  In recent years, courts in the District of Columbia, Maryland and Virginia… MORE >