POSTNUPS FOR IMMIGRATION CONCERNS

Choose a Dedicated Attorney for Your Immigration-Related Postnup

Prenuptial agreements are often misunderstood, and postnups are even more so. A postnuptial agreement refers to a legal contract that is entered into after a couple is married, and it can serve many important roles. One important concern that postnups are better prepared to address is spousal immigration. To learn more, reach out to a dedicated postnuptial attorney at JustPrenups today.

Spousal Immigration: It’s Complicated

In the United States of America, federal laws allow U.S. citizens to sponsor their foreign spouse’s immigration, which involves applying for an immigrant visa that is family-based. This allows the foreign spouse to come to the U.S. and obtain status as a Lawful Permanent Resident (LPR), which is often referred to as having green card status.

In order for your spouse to reach this important status, you’ll need to sign an Affidavit of Support, which is the equivalent of forming a contractual agreement with the government – acknowledging that you have the financial means to support your spouse at a minimum financial threshold until he or she becomes a full-fledged U.S. citizen. The most important point to make here is that even if you and your spouse divorce, you will not be relieved of this financial responsibility.

Marriages That Are Invalid for Immigration Purposes

Those couples who’ve been married for fewer than two years are granted what is referred to as conditional permanent resident status, and they must be able to demonstrate to the USCIS that they are legitimately married – and that they didn’t enter into marriage as a means of avoiding federal immigration laws. If the governmental agency deems otherwise, the foreign spouse will be required to leave the country (or will be denied entry), and the citizen spouse could face civil – or even criminal – penalties.

Prenuptial Agreements and Conditional Permanent Resident Status

Prenuptial agreements are entered into before a couple marries and are executed upon marriage. These legal contracts address financial issues that would need to be addressed if the marriage did end in divorce or that will need to be addressed upon the death of either spouse. Such contracts are becoming increasingly popular and can address a wide range of important financial concerns. Importantly, however, if a prenuptial agreement is determined to be coercive – to unfairly push one spouse into accepting terms that aren’t in his or her best interests – the court will likely reject its validity.

If your spouse is attempting to become a permanent resident and there is any evidence that he or she didn’t adequately understand the terms of the prenup or that he or she had no reasonable choice in the matter – especially if English isn’t his or her first language – it can draw the validity of the document into question. Ultimately, any terms that reduce the foreign spouse’s property rights may smack of a deal having been entered into in exchange for citizenship. It’s important to note here that the terms of the original Affidavit of Support, which is a contract with the government, supersede any terms laid out in a prenuptial agreement. In other words, if you are planning to marry a foreign citizen, entering into a prenuptial agreement may not be your best option.

Postnuptial Agreements and Conditional Permanent Resident Status

While a prenup can serve as a red flag for a couple in which one spouse has conditional permanent resident status, a postnuptial agreement can play an important role. Once your spouse becomes a U.S. citizen, you can freely enter into a postnuptial agreement – as long as it doesn’t deprive either of you of your legal rights and is entered into in good faith.

Your Postnuptial Agreement

For couples who have moved past their immigration concerns, a well-crafted postnup can serve a number of important roles, including:

• It can address important estate planning concerns, including protecting the inheritance rights of any children born of a previous marriage.
• It can help ensure that separate property remains separate.
• It can delineate how your marital property will be divided if your marriage does end in divorce.
• It can address the issue of alimony (or spousal maintenance) if your marriage does end in divorce.

Two things a postnuptial agreement cannot address are child custody arrangements and child support (unless the amount and duration included exceed the state’s child support expectations). Child custody arrangements are always based on the best interests of the children at the time of divorce and, thus, cannot be determined ahead of time.

Your postnuptial agreement can specify how your marital property will be divided in the event of divorce. Marital property is that property that you and your spouse accumulate during the course of your marriage, and in the state of Florida, these assets must be divided equitably. Equitably translates to fairly – given the unique circumstances of your marriage. That property that you and your spouse bring into the marriage with you is separate property that will remain separate – as long as it’s not intermingled with marital property (which can be a tall order). A postnuptial agreement can address the issue of keeping separate property separate and any other financial concerns you may have, including alimony.

Alimony

Alimony refers to payments that are intended to help right a financial imbalance between ex-spouses post-divorce. If one spouse experiences a financial need and the other has the financial means to help, alimony may be appropriate. The longer your marriage and the more serious the financial discrepancy, the more likely that alimony will be awarded. Your postnuptial agreement can address the issue of alimony – as long as it’s not an attempt to curtail the potential payee’s right to financial support post-divorce.

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