- Introduction
If a couple moves across state lines, what happens to their marital agreement with a choice of law provision? Upon divorce in a new state, a question arises before any analysis of the agreement can begin: which state’s law applies? In a June 2026 unreported Kentucky case, Thomas v. Thomas, a direct answer to that question is displayed in the context of a marital agreement with a choice-of-law clause. This couple’s prenuptial agreement was executed in Indiana, with an Indiana choice-of-law clause, thus designating Indiana law as governing. The divorce was later litigated in Kentucky. Kentucky ultimately applied Indiana law in full and never chose to invoke its own laws or public policy to limit any outcome. For practitioners, this case offers a concrete illustration of how choice of law clauses operate in practice in Kentucky.
- Facts of the Case
Gregory (husband) and Louvinia Thomas (wife) were married in Vanderburgh County, Indiana, in March of 2014. The couple executed a prenuptial agreement that designated Indiana law as governing. The agreement essentially stated that any infidelity on Gregory’s part would result in all assets and marital property going to Louvinia, along with $2,000 per month paid to Louvinia for support, indefinitely. Following an episode of infidelity on Gregory’s part, the couple executed a postnuptial amendment to include a new, more expansive infidelity clause. Gregory drafted the amendment himself, with his own legal counsel. The amendment expanded the definition of infidelity to include any type of contact with another woman, including hugging, and raised the total monthly support to be $4,000 per month. Gregory was subsequently unfaithful, again. Louvinia filed for divorce in Kentucky in April of 2022. Gregory claimed that both agreements were unconscionable and thus should not be enforced. The circuit court upheld them, and Gregory appealed. The Kentucky Court of Appeals ultimately affirmed and applied Indiana law throughout, refusing to exercise any public policy exception to lessen the result on Gregory’s behalf.
- Legal Issue
This case presents an interesting choice-of-law issue. While the divorce was litigated in Kentucky, the parties had executed both a prenuptial agreement and a postnuptial amendment governed by Indiana law. The Kentucky Court of Appeals honored that choice-of-law provision and applied Indiana substantive law when determining the enforceability of the agreements, including the infidelity clause.
- Court Analysis
Rather than applying Kentucky substantive law, the court enforced the parties’ Indiana choice-of-law provision and analyzed the agreement under Indiana law. The court explained that Kentucky courts will enforce another state’s law so long as doing so does not conflict with Kentucky public policy (State Farm Mut. Auto. Ins. Co. v. Hodgkiss-Warrick). The court found no conflict and proceeded under Indiana law for all substantive issues. Under Indiana law, marital agreements are favored and construed to give effect to the parties’ intent (Perrill v. Perrill). A premarital agreement would be considered unenforceable only if a party can prove that it was not executed voluntarily, or was unconscionable at the time of execution (Ind. Code § 31-11-3-8). Neither of these prongs was proved in Gregory’s claim. The most notable aspect of the court’s analysis is what it chose not to do. The Kentucky court never examined whether Kentucky law might have produced a different result, never considered whether Kentucky’s own standards of unconscionability might have applied differently, and never utilized its public policy exception to moderate Indiana law. The parties’ elected governing law, Indiana, prevailed throughout the entire substantive analysis.
- Practical Implications
For practitioners, Thomas demonstrates that a governing law clause is more than boilerplate language that may be ignored. It can determine the substantive law that controls years later, even after the parties relocate and divorce in another state. Here, the parties selected Indiana law when executing both their prenuptial agreement and postnuptial amendment. Although the divorce was litigated in Kentucky, the court honored that choice and applied Indiana law throughout its substantive analysis.
The case also illustrates the limited role of Kentucky’s public policy exception. Kentucky courts retain the authority to disregard a contractual choice-of-law provision when applying the chosen state’s law would violate Kentucky public policy. However, Thomas shows that this exception is applied narrowly. Despite an infidelity clause that awarded the wife virtually all assets upon the husband’s infidelity and a rather bizarre and expansive infidelity definition, the Kentucky Court of Appeals declined to invoke the public policy exception or substitute Kentucky law for Indiana law.
The practical takeaway is straightforward: practitioners should carefully consider the governing law selected in a marital agreement, particularly when drafting agreements for clients who may later relocate. While courts retain the ability to disregard a contractual choice of law on public policy grounds, Thomas suggests that, at least in Kentucky, that authority will be exercised sparingly. As a result, the state designated in a marital agreement will often continue to govern the parties’ substantive rights long after they have left that jurisdiction.
- Conclusion
Thomas v. Thomas confirms that when a marital agreement has a valid governing law clause, it may be honored by a forum state. Even if that forum state has a public policy exception, it is applied with caution and sparingly. The law the parties select at signing is likely to be the law that will govern their agreement. That decision warrants the same care as any substantive term in the agreement.