My fiance and I are getting married in Israel this summer and intend to live there for a few years before returning to Massachusetts. My parents have made all of my siblings sign a prenuptial agreement before getting married because of their business holdings, which someday we will inherit. My fiance also owns a business that he wants to protect.
In discussing options, we are planning to do a postnuptial agreement in Israel in case we end up staying there longer than initially planned. However, I am worried about whether that will be acceptable in Massachusetts assuming we do move back and something goes wrong here. What do you recommend?
While I am not well versed on Israeli law, I do have some basic knowledge of how this works. Unlike Massachusetts, if you execute a postnuptial agreement in Israel, you will have to submit it to a court there that will approve the agreement, thereby making it binding. At the time of court approval, you and your fiance will be asked a series of questions by a judge about your understanding, the voluntary nature of the agreement, whether you had counsel and whether you made full disclosure. This added layer makes the agreement that much more enforceable by Massachusetts standards so long as a judge here finds it fair and reasonable. For example, if he keeps his business and you keep your inheritance, and assets earned during the marriage are divided equitably, the judge should find it fair and reasonable.
The standard for a postnuptial agreement is similar in both locations. You should have an attorney representing each of you in the process so it is drafted properly and you are sure you have covered all necessary bases. The most important thing is full financial disclosure of all assets at the time of execution. That includes, to the extent you have any knowledge, your parents’ business holdings. Your parents should be well versed in their need to disclose certain information if they have been through this previously with your siblings.
Once the agreement is drafted, have it looked at by Massachusetts counsel to be sure it meets the state standards for enforcement. One thing you will need to get advice on is whether the agreement will follow Israeli or Massachusetts law upon enforcement. The agreement needs to be clear on which law will apply. While I cannot speak for Israel, in Massachusetts, if your agreement requires application of Israeli law, judges may grant what we call comity to Israeli postnuptial agreements and apply Israeli law to the divorce.
Comity is when the judge will look at the law of the other jurisdiction and determine whether their laws are substantially similar to ours, and, if so, our courts will likely uphold agreements or judgments from the other jurisdiction. Of course, this is not something you need to worry about unless the marriage doesn’t go as planned.