Premarital Agreements and Choice of Law: One, Two, Three, Baby, You and Me

Part II of this article presents an overview of premarital agreement rules related to procedural and substantive fairness. Part III examines the relationship between the Restatement (First) of Conflict of Laws (hereinafter Restatement (First)) and the Restatement (Second) of Conflict of Laws (hereinafter Restatement (Second)), with a specific focus on the ability of parties to contractually predetermine controlling law in relationship to marital rights and obligations before they marry. Part IV analyzes the choice of law provision in the UPAA. Part V synthesizes the existing judicial treatment of choice of law provisions in premarital agreements in jurisdictions applying the Restatement (First), Restatement (Second), and the other varying conflict approaches. Part VI explores case law from a variety of jurisdictions addressing particularly vexing premarital agreement construction and interpretation questions. Finally, Part VII proposes a uniform framework to assist parties, attorneys and courts in analyzing choice of law questions in the context of premarital agreements. This article argues that when a forum court exercises jurisdiction over spouses continuing to reside in the last marital domicile, courts should typically apply forum law, which is the law of the jurisdiction with the materially greatest interest, without regard to the chosen law. However, if the economically dependent spouse has relocated to a different state at the time the dissolution action is initiated, the forum court should apply the law of the domicile of the economically dependent spouse to decide questions of validity and construction, subject always to the forum\u27s fundamental public policy. Thus, in any case in which a premarital agreement contains a choice of law provision identifying the law of a jurisdiction other than the law of the domicile of the economically dependent spouse, the provision has lost its legitimacy and must concede supremacy to the law of the jurisdiction with the materially greater interest, the domicile of the economically dependent spouse