Good news: Research indicates that U.S. citizens marrying foreigners tend to have lower divorce rates compared to marriages between two native-born individuals. But we know that marrying a foreign national can still bring unique challenges – particularly when it comes to immigration. The Affidavit of Support (Form I-864) is a crucial but often misunderstood part of this process. This legally binding contract requires the U.S. citizen spouse to promise the government that they will financially support their spouse. But what if things don’t work out? Or what if your spouse never seeks citizenship? Understanding the risks of this agreement is essential for protecting yourself, and that’s where a prenuptial agreement can play a significant role. Let’s dive in.
What is the Affidavit of Support?
The Affidavit of Support (Form I-864) is a legally binding contract between a U.S. citizen (who is sponsoring their spouse’s immigration) and the U.S. government. If you sign this Affidavit of Support, you (the sponsor) are agreeing to financially support your spouse until they either become a U.S. citizen or gain 40 quarters of qualifying work (this is about equivalent to ten years of work). The government requires this contract to ensure the immigrant spouse coming to the U.S. doesn’t end up relying on public assistance one day.
Complications of the Affidavit of Support
Before you go sign this Affidavit of Support, it’s important to truly understand what you are agreeing to and the potential complications involved.
- Potential Indefinite Responsibility: If your spouse never becomes a citizen, you may be financially responsible for them forever, yes, even if you divorce.
- Divorce complications: Getting a divorce while continuing with your obligations under the Affidavit of Support can cause stress and financial hardship for you.
- Lack of Control: If your spouse never pursues citizenship, this can potentially leave you on the hook forever.
- No way out: There’s no canceling the Affidavit of Support once you’ve signed. You are bound to the terms forever.
Getting a prenup can help protect you
While there is no way out of the Affidavit of Support, there is a glimmer of hope. The prenup. A prenup doesn’t alleviate your responsibilities under the Affidavit of Support, but it can help protect you in other ways. Here are some ways a prenup can help protect you when marrying a foreigner:
- Limits Financial Risk: A prenup can limit your financial obligations in case of divorce, ensuring you only meet the minimum requirements outlined in the Affidavit of Support. No more than that!
- Encourages Citizenship: It can set a timeline for your spouse to begin the citizenship process, relieving you of potential indefinite support.
- Facilitates Communication: Creating a prenup forces open discussions about expectations regarding citizenship, marriage, and finances, potentially preventing future conflict.
Considerations to put in your prenup that will protect you
So, what can you put into your prenup to make sure you are protected when marrying a foreigner? Two main clauses to consider:
Consideration #1: Waiving alimony
- Key Issue: Potentially being financially responsible for your foreign spouse above and beyond what is required under the Affidavit of Support, such as for future alimony.
- Goal: Include a waiver of alimony to ensure the sponsor is not required for financial support payments to a foreign spouse above what is required by the Affidavit of Support.
- Why it matters: This can potentially protect the sponsoring spouse from excessive payments to a foreign spouse in a divorce.
Consideration #2: Ensuring no contradictory language
- Key Issue: Including a waiver of alimony or other similar clauses could potentially create a conflict or contradictions with the Affidavit of Support.
- Goal: Include clauses and ensure a thorough review of the prenup to avoid conflict and contradiction.
- Why it matters: A conflicting and contradictory prenup is at risk of being thrown out by a court.
Consideration #3: Setting a timeline for citizenship
- Key Issue: There is the potential indefinite financial liability if the spouse doesn’t pursue citizenship.
- Goal: Define a reasonable timeframe for naturalization, protecting the sponsor.
- Why it matters: Requiring a foreign spouse to seek citizenship can protect a sponsoring spouse from indefinite financial responsibility in the event of a divorce.
A prenup should also benefit the foreign spouse
Make no mistake–prenups should not be one-sided and only meant to protect the U.S. spouse. In fact, creating a prenup that is egregiously one-sided with nothing for the benefit of the foreign spouse may be at risk of being thrown out, depending on the situation and the state you live in. So, there should be considerations for the immigrating spouse in the prenup, too. Here are some examples of clauses that may be included to benefit the foreign spouse:
- Limitation of alimony: Maybe instead of a total waiver of alimony, instead you put a cap on alimony as a better middle ground for your situation.
- Lump sum payment: Paying the foreign spouse a lump sum of cash instead of alimony to even out any financial discrepancies without being on the hook for potentially indefinite alimony AND indefinite support through the Affidavit of Support obligations.
- Primary residence clause: Allowing the foreign spouse to remain in the primary home for a set period of time to allow them to get on their feet and figure out their next steps. This doesn’t transfer ownership but simply gives them the right to stay in the home for a set time.
- Property division: Allowing for a certain amount of property division to benefit the foreign spouse, such as giving them rights to a certain asset in a divorce.
Conclusion: Finding balance through planning
While marrying a foreign spouse opens doors to a world of cultural exchange and love, it’s wise to be aware of the legal complexities that come with it. The Affidavit of Support is a very serious financial obligation, and understanding its long-term consequences is key. Although it cannot be canceled, a well-crafted prenup can offer a crucial safety net, protecting both you and your spouse.
Remember, a prenup isn’t just about safeguarding your interests; it’s also about fairness. By working together to address financial responsibilities, citizenship timelines, and potential “what-if” scenarios, you can create a plan that protects both partners.
Frequently Asked Questions (FAQs) about marrying a foreigner
Let’s discuss some more of your lingering questions on this topic.
Q: What is the main thing I need to know about marrying a foreign spouse?
A: The Affidavit of Support! It is an important and profound legal commitment you will need to make to bring your future spouse to the U.S. It means you’re financially responsible for your spouse until they become a citizen or gain enough work credits in the U.S., which could end up being forever, even if you divorce.
Q: Can I get out of the Affidavit of Support if my marriage doesn’t work out?
A: No. Unfortunately, even divorce doesn’t nullify the contract that is the Affidavit of Support.
Q: How can I protect myself when I marry a foreigner?
A: A thoughtfully crafted prenup can offer protection, such as waivers of spousal support and creating a timeline for citizenship.
Julia Funke is a managing attorney at International Legal and Business Services Group LLP, a full-service immigration law firm serving clients across the U.S. She earned her J.D. from the University of Illinois Chicago School of Law. When she’s not helping clients, Julia teaches immigration law at a local public college. To connect with Julia for your immigration-related needs, please reach out to [email protected]
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