Blog Layout

Immigration After Trump's Election - and Your Prenup

November 11, 2024

Is your marriage immigration-motived?


Is immigration one more thing on your wedding planning list?

A couple wearing sneakers and formal clothing sit on a bench outside and kiss.


WARNING: DIY PRENUPS ARE POPULAR IN MANY STATES, ESPECIALLY AS MANY COUPLES ARE SUFFICIENTLY SOPHISTICATED TO DRAFT THEIR OWN ADEQUATELY. THAT'S NOT THE CASE IN FLORIDA, WHICH HAS A MORE COMPLICATED FAMILY LAW LANDSCAPE THAN ANYWHERE ELSE. PER NEW LEGISLATION IN 2023, FLORIDA PROHIBITS A TOTAL WAIVER OF ALIMONY.  YOU CAN EITHER (1) LEAVE IT UP TO THE COURTS, WHICH NEGATES THE REASON FOR A PRENUP, OR (2) BUILD IN SUBSISTENCE ALIMONY THAT SATISFIES THE STATUTE THROUGH TRIGGERS, RESTRICTIONS, "FLOORS," AND "CEILINGS." HOWEVER, ALL OF THAT MUST BE DONE WITH RESPECT TO THE AFFIDAVIT OF SUPPORT, ALSO KNOWN AS FORM I-864.


Immigration-Driven Marriages and Prenups


If you are preparing to marry someone who is not a U.S. citizen, you are not alone. It’s estimated that about seven percent of couples in the U.S. are right there with you. While many couples are interested in the financial protections that prenuptial agreements can offer, if your marriage involves immigration concerns, you’re going to want to think carefully about whether a prenup is in your best interest or not. And you’re going to need an experienced Florida prenuptial attorney on your side.


Spousal Immigration and the Affidavit of Support (Form I-864)


American citizens have the legal right to sponsor their foreign spouse’s immigration to the United States via a family-based immigration visa. This will ultimately provide your spouse with Lawful Permanent Resident (LPR) status, which is commonly referred to as having a green card.


In order for your spouse to reach LPR status, you’ll need to enter into a contractual agreement with the U.S. government in the form of an Affidavit of Support. This contract formally acknowledges that you have the financial means to – and are prepared to – financially support your spouse at a minimum financial threshold (until he or she becomes an American citizen). You won’t be relieved of this financial responsibility – it’s important to note – even if you and your spouse divorce and even if you have a prenup. Many people, including licensed attorneys, mistakenly believe, that a prenup can shield you from the commitments you have made under the Affidavit of Support. To be clear, a prenup cannot. 


However, a prenup becomes most important BECAUSE you have signed an Affidavit of Support. 


An Affidavit of Support has you potentially supporting your divorced

spouse beyond what any state's alimony requirement might be.


Therefore, protecting your assets, the growth on your assets, and the reinvestment of your assets is critical as you may be paying alimony and child support well beyond your means. Florida has always protected premarital assets even without a prenup until 2018.  In 2018, significant statutory changes were made that impact real property owners. Whether your assets are real estate, cash, or businesses, you need a prenup to protect the growth and the reinvestment of those premarital assets: the growth and the reinvestment during the marriage become marital property without a prenup.


Conditional Permanent Resident Status


For the first two years of your marriage, your spouse will be granted what is known as conditional permanent resident status. To lose the conditional status, you’ll need to demonstrate that you are actually married – not married for the purpose of obtaining citizenship – to the USCIS (in accordance with the governmental agency’s standards). If the USCIS isn’t convinced that your marriage is "real" and in good faith, your spouse may be required to leave the United States (or be barred from entry), and you could face civil and/or criminal charges.


When it comes to marriages involving spousal immigration, there is even more at stake than in most other marriages, and it’s important to get your legal ducks in a row, especially within the prenup itself: specifically, if the contract smacks of coercion, or if the court isn’t convinced that your spouse clearly understood the terms of the contract (especially if English isn’t his or her first language), it very likely won’t be upheld.


You know that you’re marrying out of love for one another, but it’s only natural to have financial concerns given the fact that divorce does happen. Further, if this is a second marriage, your finances are likely to be complicated and require more careful attention.


Do you need to pursue an immigration-driven prenup? Are you in a time crunch?


Please fill out our online form to request a free consultation with JustPrenups.


Warning: All posts on this website contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client or mediator-client relationship between the reader and JustPrenups.com.



Matrimonios y acuerdos prenupciales impulsados ​​por la inmigración


Si se está preparando para casarse con alguien que no es ciudadano estadounidense, no está solo. Se estima que alrededor del siete por ciento de las parejas en los EE. UU. están ahí contigo. Si bien muchas parejas están interesadas en las protecciones financieras que pueden ofrecer los acuerdos prenupciales, si su matrimonio involucra preocupaciones de inmigración, querrá pensar detenidamente si un acuerdo prenupcial es lo mejor para usted o no. Y necesitará un abogado con experiencia en asuntos prenupciales de Florida de su lado.


Inmigración conyugal y declaración jurada de manutención (formulario I-864)


Los ciudadanos estadounidenses tienen el derecho legal de patrocinar la inmigración de su cónyuge extranjero a los Estados Unidos a través de una visa de inmigración basada en la familia. En última instancia, esto le brindará a su cónyuge el estatus de Residente Permanente Legal (LPR), lo que comúnmente se conoce como tener una tarjeta verde.


Para que su cónyuge alcance el estatus de LPR, deberá celebrar un acuerdo contractual con el gobierno de los EE. UU. en forma de Declaración jurada de manutención. Este contrato reconoce formalmente que usted tiene los medios financieros y está preparado para mantener financieramente a su cónyuge hasta un umbral financiero mínimo (hasta que él o ella se convierta en ciudadano estadounidense). No quedará eximido de esta responsabilidad financiera (es importante tenerlo en cuenta) incluso si usted y su cónyuge se divorcian e incluso si tienen un acuerdo prenupcial. Muchas personas, incluidos los abogados autorizados, creen erróneamente que un acuerdo prenupcial puede protegerlo de los compromisos que ha asumido en virtud de la Declaración jurada de manutención. Para ser claros, un acuerdo prenupcial no puede. 

Sin embargo, un acuerdo prenupcial se vuelve más importante PORQUE usted ha firmado una Declaración jurada de apoyo.


Una Declaración Jurada de Apoyo le permite potencialmente apoyar a su pareja divorciada.


cónyuge más allá de lo que podría ser el requisito de pensión alimenticia de cualquier estado.


Por lo tanto, proteger sus activos, el crecimiento de sus activos y la reinversión de sus activos es fundamental, ya que es posible que esté pagando pensión alimenticia y manutención de los hijos mucho más allá de sus posibilidades. Florida siempre ha protegido los activos prematrimoniales incluso sin un acuerdo prenupcial hasta 2018. En 2018, se realizaron cambios estatutarios importantes que afectan a los propietarios de bienes inmuebles. Ya sea que sus activos sean bienes raíces, efectivo o negocios, necesita un acuerdo prenupcial para proteger el crecimiento y la reinversión de esos activos prenupciales: el crecimiento y la reinversión durante el matrimonio se convierten en propiedad conyugal sin un acuerdo prenupcial.


Cuando se trata de matrimonios que involucran inmigración conyugal, hay incluso más en juego que en la mayoría de los otros matrimonios, y es importante tener a sus asuntos legales en orden, especialmente dentro del propio acuerdo prenupcial: específicamente, si el contrato huele a coerción, o si Si el tribunal no está convencido de que su cónyuge entendió claramente los términos del contrato (especialmente si el inglés no es su primer idioma), es muy probable que no lo confirme.


Saben que se casan por amor mutuo, pero es natural tener preocupaciones financieras dado que el divorcio ocurre. Además, si se trata de un segundo matrimonio, es probable que sus finanzas sean complicadas y requieran una atención más cuidadosa.


¿Necesita buscar un acuerdo prenupcial impulsado por la inmigración? ¿Estás en una crisis de tiempo?


Complete nuestro formulario en línea para solicitar una consulta gratuita con JustPrenups.


Request Consultation →
Request Consultation →
By 7107328235 March 27, 2025
A prenuptial or postnuptial agreement can save your business. Consider two dry cleaners, Ricky and Fred. Both thought they would be married to their wives until “death do they part.” Unfortunately, they both ended up divorced. Ricky walked out of divorce court personally and professionally ruined. Fred, while emotionally drained, was able to maintain and grow his successful business. Why the different outcomes? Ricky’s Story Ricky owned a dry cleaning business with Lucy, his wife of 19 years. Ricky was in charge of all aspects of the business, but Lucy did manage the company’s payroll and vendors part-time. Occasionally, she worked the front counter. For the most part, Lucy raised the children and cared for her elderly parents. When they decided to divorce, Ricky and Lucy were still civil and wanted their divorce to be amicable. Ricky and Lucy worked together, without lawyers, to craft a plan for sharing time with their teenage sons, and for sharing the family’s expenses. They also agreed to sell their house after their youngest son graduated high school. After a few months, and at the urging of a well-intentioned friend, Lucy hired a lawyer to write up the couples’ plan. Lucy’s main goal was to make sure the divorce ended fairly for her children. The lawyer, however, believed that since any small business owner could hide income, assets, or a company’s true value, then Ricky must be doing that too. Even though Lucy had a base of knowledge of the business’s finances, she trusted her lawyer and figured that he knew better. So, she agreed to his “scorched earth” strategy to protect her children. What is a “scorched earth strategy”? This is a common tactic to squeeze a business owner into a large and early settlement. The lawyer hires an accountant, and they go after every scrap of information and document pertaining to the company’s assets and liabilities, and they question it all—every argument and angle of attack is fair game. Much of the cost of providing the information and documents, and defending business decisions, must be paid by the business. Scared and desperate, Ricky lawyered up too. Unfortunately, Ricky’s lawyer couldn’t advise him on the settlement terms proposed by Lucy’s lawyer without conducting his own analysis of the company’s voluminous records. Much of the paper work involved in operating a dry cleaning business was foreign to him, and the stringent environmental regulations and reporting was overwhelming. Ricky’s lawyer had to hire his own accountant to help value the business for the divorce. Ricky and Lucy were now far from civil with one another, and the mud began to fly. Faced with dueling accountants, complicated and conflicting arguments about the business’s finances and value, and accusations against Ricky of financial wrongdoing, the family court judge appointed an independent forensic accountant to advise the court. The independent accountant saw that the business, which was the couple’s biggest asset, was crumbling because the ugly divorce was keeping Ricky from focusing on the business. The accountant was also worried about the accusations of financial wrongdoing by Ricky. So, on the independent accountant’s recommendation, the court appointed a receiver to operate and protect the dry cleaning business. Ricky and Lucy were now paying six different professionals, and trial was still months away. The receiver discovered that the company’s records did not comply with dry cleaning waste disposal regulations, and reported the non-compliance to government authorities. Ricky and Lucy blamed each other for the missing paperwork, and the sour relationship between them stalled and ultimately prevented joint efforts at an amnesty program and damage control. The business began to accrue daily statutory fines, employees were laid off, debts mounted, and the business eventually shut its doors while Ricky and Lucy continued to fight in divorce court. A year later, with no business to provide income for Ricky or Lucy, Ricky agreed to settle by paying Lucy more than half of his share of the house. Lucy accepted the offer, even though it was smaller then what she expected originally, because her share of the house was pledged to pay her lawyer’s fees. Fred’s Story Fred was married to Ethel for 22 years, and they have a daughter. Like Ricky and Lucy, Fred ran the business while Ethel was involved part-time in just certain aspects. But unlike Ricky and Lucy, when Fred bought his dry cleaning business nine years earlier, Fred and Ethel signed a postnuptial agreement to protect each other in case of divorce. The attorney-drafted agreement laid out a strict structure for evaluating and dividing the business, and for determining Fred’s true income for spousal and child support calculations. It identified and limited the financial information and documents that the business would have to disclose. It also required that the couple use a single neutral accountant (who would be paid from marital property and not by the company), to gather and evaluate that financial information and documentation. Early in the divorce, Ethel agreed that the postnuptial agreement was valid. She waived any right to ask the court to force the company to disclose more information or documents than described in the postnuptial agreement. This entitled Ethel to an immediate, fair, and higher award of support, thanks to a provision that she and Fred put in the agreement to encourage a quick resolution. Within a month, Fred and Ethel’s divorce was finalized, with minimal attorneys’ and accountant fees, and with no interference or intrusion into the dry cleaning business or operations. How could two similarly situated businesses and families leave divorce court with such different results? The first story is horrifying, but exceedingly common. Many states have onerous disclosure requirements that unnecessarily burden the time and finances of a small business. Unscrupulous divorce lawyers are trained to hone in and target a business owner’s fear of having the business’s confidential and financial information exposed to the world, to induce an early and usually unfair settlement. Fair and careful divorce lawyers will also want extensive company records, because they fear being liable for giving bad advice if they make recommendations without investigating the whole picture themselves. Either way, good lawyer or a bad one, smart judge or not, a case involving a small business can be very costly. The best way to avoid being a Ricky, is to get a prenuptial or postnuptial agreement like Fred. A good prenuptial or postnuptial agreement can render the most intrusive and damaging financial disclosures unnecessary, and can limit or attribute the related costs away from the business. In some situations, as shown above, they can save the business itself. If Ricky had a prenuptial or postnuptial agreement in place, maybe a receiver would not have been necessary, and Ricky and Lucy could have resolved the business’s regulatory problems confidentially without going out of business. Ricky and Fred were not wrong to believe in their marriages. A life-long commitment is not fanciful; it is a hopeful and beautiful goal. Most couples think they will reach that goal and that other couples will fill our country’s depressing divorce statistics. But consider this, we buy life insurance, install security systems, and wear seat belts “just in case.” They give us security even if we think that odds will always be in our favor. A careful and thorough prenuptial or postnuptial agreement can provide you, your spouse, and your business with security that all will be protected in a divorce, and that years of building a life and a business will not be burned to the ground. Chantale Suttle is the Managing Attorney and Founder of DADvocacy™ Law Firm, which is headquartered in Miami, Florida. She has been in the exclusive practice of family law for over 21 years and has served countless small business owners in divorce court. Drafting prenuptial and postnuptial agreements for small business owners is her favorite work.
A couple sits on a bench as one person reaches out to the other who is turned away.
By 7107328235 January 15, 2025
Your fiancé or fiancée presented you with a prenuptial draft: will you sign it before you hear wedding bells? Now you need a review by an attorney to ensure that your assets and your future security are protected: welcome to JustPrenups' prenup review! JustPrenups now offers UPLOADR: quickly share your prenup draft easily from any device in multiples format through UPLOADR on our site - no scanning, no email. Once we receive your prenup draft, an attorney examines the prenup that you received and then meets with you for a free consultation on Zoom. We hold your document and its data in confidence, even if you don't retain us, per our ethical requirements.
A couple walks along a Florida beach by the water in sunshine.
By 7107328235 December 26, 2024
Florida is a quirky place full of contrasts, and so is its family law. In particular, recent updates to Florida family law have changed the rules for alimony in Florida prenups. If your prenuptial agreement doesn't follow these changed rules, your prenup may not be valid and enforceable; as a result, you may be facing high financial stakes in divorce litigation that may put your assets at risk.
More Posts →
Share by: