If Sandra Bullock’s The Proposal has ever been the feature of one of your rom-com movie nights, you are familiar with the concept of marrying a U.S. citizen in order to obtain a “green card.” As cliché as the storyline may be, marrying a foreign citizen does involve some hoop-jumping! There can also be some important implications for your prenup.
Marrying a foreign citizen
Let’s say you fall in love on a trip to a foreign county. In fact, you are so head over heels that you decide to get married. Congrats! You and your new fiancé want to live in the U.S. So, what next? Well, as the spouse of a United States citizen, your new spouse is eligible to apply for lawful permanent residence (LPR) status (more commonly known as a green card). As the name suggests, this residence status allows the foreign citizen to live and work in the US permanently. After a certain amount of years as an LPR, you are also eligible to become a naturalized citizen.
Affidavit of support
In order for your spouse to obtain permanent residence status, you, as a US citizen will likely need to vouch for your new spouse. Essentially, the federal government wants to ensure that the new permanent resident will have financial support after their move to the country. This requires the completion of an “affidavit of support”. The name is a little misleading because what you are actually doing by filling out this “form” is entering into a contract with the United States thereby legally accepting financial responsibility for your new spouse.
This can have serious implications down the road. Importantly, your legal obligation to financially support your spouse does not end upon divorce. You read that right! Even if you and your spouse split, you can still be on the hook for financial support. Specifically, if after your divorce, your former spouse receives “means-tested” public benefits based on their indigency, you have to repay the government. Only after your former spouse has worked for approximately 10 years, or if your spouse becomes a naturalized citizen, can you be relieved of this contractual duty.
What does this mean for your prenup?
First things first, any prenup provisions which limit an LPR spouse’s right to alimony/spousal support can be superseded by the US citizen spouse’s contractual obligations with the federal government. So, while your LPR spouse may waive their right to alimony in the prenuptial agreement, you may still be required to financially support your spouse after divorce. If you don’t, and your former spouse receives public benefits, you are on the hook for the bill.
However, while you can’t wholly contract away your contractual obligation owed to the government, you can enter into agreements with your spouse in which they agree to indemnify you. But, be aware that at the end of the day, the government will still be looking to you to pay the bill. And, if your former spouse doesn’t cooperate, you may end up in court trying to enforce the indemnity agreement.
Other than the obligation to financially support your LPR spouse, your prenup can still protect your other assets. The same goes for the LPR spouse! Perhaps you both want all physical property not purchased jointly to remain separate property. You can still specify that in your prenup as long as it does not interfere with your obligation to financially support your non-citizen spouse.
Language barrier concerns
It’s extremely important for both spouses to fully understand the prenuptial agreement that they are entering into. If they don’t due to language barriers, this can present huge issues for the enforceability of your agreement down the road. For example, the non-native speaker may seek to invalidate the agreement upon divorce because they argue that they did not fully understand what they were signing.
When one of the future spouses is a non-native English speaker, it may be worth considering the use of a certified interpreter. This may not always be necessary but if there is any question, it’s better to be on the safe side and cover all of your bases. Even the appearance of a lack of understanding can be detrimental to the enforceability of the prenup.
Immigration law is a very complex subject so it may be necessary for you to reach out to an immigration attorney prior to entering into a prenuptial agreement.
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Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected]