PRENUPS FOR IMMIGRATION-DRIVEN MARRIAGES
If you are preparing to marry someone who is not a U.S. citizen, you are not alone. It’s estimated that about 7 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.
The motivations behind spousal immigration and prenuptial agreements can be at odds. Let’s take a closer look. 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.
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 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.
Because prenuptial agreements are entered into before you marry (and are executed upon marriage), they can be a bad look when you’re attempting to disprove a negative (disprove that your marriage is an immigration scam). Further, the Affidavit of Support that you enter into with the federal government is very likely to supersede any attempt you make to bypass your financial responsibility to your spouse in a prenuptial agreement.
Prenuptial Agreements Serve Many Purposes
Prenuptial agreements, however, can address many issues that go beyond spousal support, including:
- Caring for an aging parent
- Credit card debt
- Tax liabilities
- Estate planning concerns, including protecting the inheritance rights of children from a prior marriage
If your prenup concerns itself with financial concerns that aren’t predicated on limiting your financial responsibility to your spouse in the event of a divorce, it is far less likely to raise any red flags with the USCIS when it comes time to move forward with LPR status. The most salient point to make here is that it is in your best interest to consult with a prenup attorney with extensive experience in these complicated matters before signing off on anything.
A Postnuptial Agreement May Be a Better Option
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. 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 even more complicated and to require even more careful attention. While a prenuptial agreement can be a dicey proposition, a postnuptial agreement can serve the same purpose – if entered into in good faith. A postnuptial agreement is a legal contract that is just like a prenuptial agreement except that it’s entered into after you’ve married. And if your spouse is an immigrant, it would likely be beneficial to enter into a postnup after he or she receives LPR status.
A Viable Postnuptial Agreement
While a postnuptial agreement may be a better option than a prenup if your spouse is an immigrant, this does not mean the government won’t carefully examine the matter if your marriage does end in divorce. If the contract smacks of coercion, if it appears to diminish your spouse’s financial rights, 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. Further, a postnuptial agreement – just like a prenuptial agreement – cannot address either child custody arrangements or child support (unless the terms exceed the state’s calculation guidelines). The State of Florida decides every child custody case on an individual basis – predicated on the best interests of the children involved – and the terms can’t be committed to ahead of time.
Division of Marital Property
Your postnup can address the division of your marital property. In the State of Florida, marital property (those assets that you and your spouse acquire throughout your marriage) is divided in a manner that is considered equitable (or fair given the unique circumstances of the marriage) upon divorce. While the property that you and your spouse own separately will remain separate if you do divorce (in theory), it can be extremely difficult to keep separate property separate during a marriage (finances have a way of becoming commingled as the years pass). A postnup allows you the opportunity to delineate separate property and to help maintain its separate nature.