By Natalie S. Kay, Esq. | Partner and Business Unit Leader, Family & Marital Law 

South Florida is an international community, and the divorces filed in here increasingly reflect that. Couples who married in Europe, Latin America, or elsewhere often arrive in a Broward, Miami-Dade, or Palm Beach County courtroom with a prenuptial agreement, or something that they expect to function like one, signed years earlier under another country’s law. When the marriage ends here, two questions frequently dictate not only how the case unfolds, but also the outcome of the entire case: what does that foreign agreement actually mean, and will a Florida court enforce it?

The answer is rarely as simple as either spouse expects. Having recently tried a multi-week case in Palm Beach County that turned on exactly this issue, it is clear that foreign prenuptial agreements raise challenges that a standard Florida prenup does not.

Florida Will Typically Honor the Agreement

Florida courts are receptive to prenuptial agreements, including those executed abroad. Where an agreement contains a choice-of-law clause selecting a foreign jurisdiction, Florida courts will ordinarily apply that law unless doing so would offend a strong public policy of this state. Where the agreement is silent on governing law, the court must determine which jurisdiction’s law applies to its validity and interpretation, which can itself become a contested issue.

This does not mean a foreign agreement is automatically enforceable. A spouse challenging the agreement may still argue that it was procured through fraud, duress, coercion, or overreaching, or that it was unreasonable and entered without adequate disclosure.

Many Foreign “Prenups” Are Not Prenups at All

This is the point most often misunderstood. In many civil-law countries, couples do not negotiate a bespoke agreement the way American couples do. Instead, they elect a statutory marital property regime at the time of marriage; for example, separation of property, community property, or a deferred-community or participation regime, often in a short notarized document or a box checked on a marriage registry form.

That election carries with it an entire body of foreign law defining what is separate, what is marital, how title is treated, and how contributions during the marriage are accounted for. The document itself may be two paragraphs long, but the rules it imports may run to hundreds of pages of foreign code and case law. A Florida judge cannot accurately apply those rules without evidence of what they actually are, which can often require foreign law expert witnesses.

Proving Foreign Law in a Florida Courtroom

Florida courts may take judicial notice of the law of foreign countries, but in practice the content of that law must be proven, and the party relying on it bears the burden of presenting it. That typically means retaining a qualified foreign law expert, a practicing attorney, prior jurist, notary, or academic from the relevant jurisdiction, to testify about how the regime operates and how a court in that country would decide the question. Certified translations of the agreement and of any statutes or decisions relied upon are essential, and disputes over translation are common and occasionally outcome-determinative.

Expect the other side to retain its own expert. The trial then becomes, in part, a contest between competing accounts of foreign law, and the quality of preparation, including the expert’s credentials, the depth of the supporting authorities, and the consistency between the legal theory and the forensic evidence, frequently decides the case.

Enforcing the Result Across Borders

Even a favorable Florida judgment does not automatically transfer title to a villa in another country or an interest in a foreign company. A Florida court has authority over the parties before it, and it can order a spouse to transfer shares, or pay equalizing sums; but it cannot directly change the property records of another nation. Where significant assets are located abroad, the litigation strategy should account from the outset for how a judgment will be recognized and enforced in that jurisdiction, and whether a parallel proceeding there is necessary.

What This Means If You Are Facing Divorce With a Foreign Agreement

• Do not assume the agreement means what it appears to say in English. Its meaning depends on the foreign law it imports.
• Gather the full record early. Marriage registry documents, notarial records, and any amendments made during the marriage can change the analysis entirely.
• Preserve funding and acquisition records for every significant asset. Under some foreign regimes, the source of funds matters.
• Retain counsel who has actually litigated these cases. Coordinating foreign law experts, forensic accountants, and cross-border enforcement is a different undertaking than a domestic divorce, even a high-asset one.

Foreign prenuptial agreements and marital property regimes are a growing feature of South Florida family law, and they reward preparation. If you are contemplating divorce and your marriage began under another country’s law, the time to understand what your agreement really provides is before the first pleading is filed.

This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. The law varies by jurisdiction and by the facts of each case.

Natalie Kay
Partner/Business Unit Leader, Family Law
Kelley Kronenberg-Fort Lauderdale, FL.
(954) 370-9970
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