Is our foreign marriage clause binding in California for asset division?

Question

My wife and I were married in our home country and later immigrated to the U.S. We've lived in California for about 10 years. Our marriage certificate includes a clause we did not sign, stating that if the divorce is not initiated by my wife, I must give her up to half of the assets I acquired during the marriage unless it's due to her failure to fulfill her marital duties. We plan to divorce by mutual agreement in our home country.

1. Is this clause binding in California, considering our marriage was registered abroad? If we were to divorce in California, would this clause override California’s community property laws?
2. If we finalize our divorce in our home country, will it be recognized in California? Could there be any legal issues in California after the divorce, especially regarding the division of assets acquired in California, such as a car and potential earnings from e-books?

We have no children and have filed joint tax returns in the U.S. My intention is to live in another country post-divorce, though I'm not entirely sure, while my wife may return to the U.S.

Tobie B. Waxman · Answer

The laws of the tribunal (state, county or country) where you file for divorce will control.  If you divorce in another country, a valid divorce there will be considered valid here in California without any additional filings.

James L. Arrasmith · Answer

Your situation involves complex international marriage and divorce considerations that intersect with California law.  
 
California follows community property laws, which generally override foreign marriage contract provisions unless both parties explicitly agreed to them. Since you mention this clause wasn't signed by either party, it would likely not be enforceable in California courts - they would instead apply standard community property rules where assets acquired during marriage are split 50/50, regardless of which spouse initiated the divorce. 
 
Regarding your second question, California typically recognizes foreign divorces if they were properly executed according to that country's laws and both parties had notice of the proceedings. However, if there are disputes about California-acquired property after the foreign divorce, either party could potentially file a separate property division action in California courts. Given your plans to live abroad and your wife's potential return to the U.S., you might want to ensure all property division issues are thoroughly addressed in your foreign divorce agreement to prevent future complications. 
 
Consider consulting with legal professionals who understand both California and your home country's laws to ensure your divorce agreement will be recognized and enforceable in both jurisdictions. The key is creating clear documentation about how all assets, including future e-book earnings, will be handled to avoid any post-divorce disputes.

Q: Is our foreign marriage clause binding in California for asset division?