How to get a prenuptial agreement as an American living abroad with no US domicile

Why this is harder than it sounds

For most Americans, a prenuptial agreement is straightforward in one sense: you pick a state, hire an attorney, and that state's contract law governs. The agreement lives or dies in a known court system under known rules.

But what if you've been living in Germany for six years, your last US address was a rental in Austin, you have no intention of returning to Texas, and you're about to marry a French citizen in Paris? Which state - if any - governs your prenuptial agreement? Which country's formal requirements must you satisfy? If the marriage ends in a German court ten years from now, will your American-law prenup be recognized?

These are not hypothetical edge cases. They are the actual situation facing tens of thousands of Americans abroad every year - and they don't have clean answers. What follows is an honest guide to how to think through it and what to do.

The domicile problem

In the US legal system, domicile drives almost everything in family law. Divorce jurisdiction, property division default rules, probate, and contract enforcement all hinge on where you're domiciled. A prenuptial agreement that says "governed by the law of [State]" has a solid foundation if you're actually domiciled there.

But if you've abandoned your last US domicile and haven't established a new one - either because you're genuinely unsure where you'll end up, or because you've deliberately structured your life without a US domicile - then a choice-of-law clause pointing to a specific state is somewhat fictitious. A court won't necessarily refuse to honor it, but it has less genuine connection to your situation.

This matters for two reasons:

• Enforcement in the US. If the marriage ever ends and US courts become involved (perhaps because you return or have US assets), a court may scrutinize a choice-of-law clause that has no genuine connection to either party. A clause pointing to New York is stronger if at least one party has meaningful ties to New York.
• Enforcement abroad. Foreign courts that respect party autonomy in choice-of-law (many civil law countries do) may honor a US state governing law clause. But they'll apply their own formal validity rules regardless.

The case for two documents

The most practical approach for many expats in this situation is two agreements - or a single agreement that satisfies the formal requirements of multiple jurisdictions simultaneously.

Option A: Two separate agreements

One agreement drafted under a chosen US state law (typically New York, Delaware, or another state with a well-developed contract law tradition), executed according to that state's requirements. A second agreement - or the same substantive terms - executed according to the local country's requirements, reviewed by a local attorney, and in the local language if required.

The downside: cost, complexity, and the risk that the two documents are inconsistent. If they conflict, courts may be uncertain which controls.

Option B: One document designed for multi-jurisdiction validity

A single agreement that explicitly: (1) states the choice of governing law, (2) satisfies the formal validity requirements of your host country, (3) is translated and notarized as required, and (4) contains an explicit severability clause so that if any provision fails under one jurisdiction's law, the rest survives.

This requires attorneys in at least two jurisdictions to collaborate - more expensive upfront, but fewer future conflicts between documents.

"The goal is not a perfect prenup - it doesn't exist across borders. The goal is a prenup that a court in each likely jurisdiction would at minimum not immediately throw out, and ideally would uphold substantively."

Choosing a governing law state

Even without genuine domicile, you can specify a governing law. When choosing, consider:

• New York is frequently chosen for its well-developed commercial contract law, its enforceability of sophisticated agreements between parties represented by counsel, and its familiarity to international attorneys. New York courts generally enforce choice-of-law clauses.
• Delaware has similarly strong contract law traditions and is often chosen by those with business entities there.
• Avoid community property states (California, Texas, Washington, etc.) as governing law if your assets are primarily held elsewhere - their default rules create complexity that has to be explicitly overridden in the agreement.
• Connection matters. Courts are more likely to honor a choice-of-law clause if at least one party has some genuine connection to the state - even if it's a bank account, a business registration, or a former address.

Local country requirements

Every country has its own rules about what makes a prenuptial agreement formally valid. In France, a prenup (contrat de mariage) must be drafted by a notaire before the marriage and registered - you cannot do it yourself. In Germany, a Ehevertrag requires notarization by a German Notar. In many civil law countries, a handwritten contract signed by both parties is not a prenup - it doesn't exist as far as local courts are concerned.

The formal validity requirements of the country where you're marrying - and the country where you're likely to live - are not optional. Even if you have a perfectly drafted New York prenup, if it fails the formal requirements of the local jurisdiction, a local court will not enforce it.

Key questions to ask a local attorney:

• Does this country recognize foreign-law prenuptial agreements at all?
• What are the formal requirements for a prenup to be valid here?
• Is notarization required? Court registration? A waiting period?
• Are there substantive limits - things the prenup cannot legally contain?
• What happens to the prenup if we later move to another country?

The Hague Convention on Matrimonial Property

The 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes governs choice-of-law in prenuptial agreements in many civil law countries. Under the Convention, parties can generally choose the law of any country with which at least one party has a genuine connection at the time of the marriage (country of nationality, habitual residence, etc.).

The United States has not ratified this Convention - so if your prenup nominates US state law, the Convention doesn't automatically apply on the US side. But in countries that have ratified it (most of continental Europe), the Convention may make it easier for courts to recognize your US-law choice-of-law clause, provided the connection requirement is met (one of you is a US citizen - which satisfies nationality connection in most signatory countries).

What the prenup should address

Beyond the jurisdictional scaffolding, the substantive content matters. For expats, the prenup typically needs to address:

• Pre-marital assets. Clearly identify assets each party brings into the marriage and state that they remain separate property in the event of divorce.
• Assets acquired during the marriage. Specify whether income and assets accumulated during the marriage are separate or shared - and in what proportion.
• US retirement accounts. IRAs, 401(k)s, and other US-specific retirement vehicles need explicit treatment, as they are often subject to US federal rules (ERISA) that may conflict with a foreign court's assumptions.
• Real estate in multiple countries. Property in different jurisdictions may be treated differently under local law. The prenup should explicitly address real property in each country where either party owns or may own property.
• Currency of valuation. Specify the currency in which asset values are stated and how exchange rates are handled.
• Governing dispute resolution. Where are disputes about the prenup itself heard? Which country's courts? Arbitration? This is separate from the governing law question.

Getting the right attorneys

This cannot be done with one attorney. You need:

• A US family law attorney in the state you're selecting as governing law. They draft the substantive agreement and ensure it meets that state's enforceability requirements (independent legal advice for both parties, timing requirements, etc.).
• A local country attorney or notaire who understands international family law in your host country. They handle formal validity, translation, notarization, and registration as required under local law.
• Ideally, these two attorneys talk to each other. The worst outcome is two perfectly valid documents in their own jurisdictions that contradict each other on a key point.

Timing and process

Start early. Courts are skeptical of prenups signed under duress or in close proximity to the wedding date. Many jurisdictions have their own rules (some require the agreement to be signed a certain number of days before the marriage). Start the process at least 6 months before your intended wedding date, ideally longer.

Each party should have independent legal representation. This is not just good practice - it's a requirement for enforceability in most US states and in many foreign jurisdictions. An agreement signed by one party who didn't have their own attorney is more easily challenged.

The bottom line

A prenuptial agreement as an American expat without US domicile is achievable - but it requires deliberately more structure than a domestic prenup. The key principles:

1. Accept that no single document will be perfectly enforceable in all jurisdictions simultaneously. Design for the jurisdictions most likely to matter.
2. Choose your governing law deliberately - ideally a US state you have or will have some genuine connection to.
3. Satisfy the formal requirements of your host country - these are non-negotiable for local enforceability.
4. Use two coordinating attorneys, not one attorney in one jurisdiction.
5. Start early, and don't sign the day before the wedding.

The goal isn't perfection - it's a document robust enough to hold up in the jurisdictions that are actually likely to matter if the marriage ends. That's achievable. It just requires doing the work.