Are you a non-U.S. citizen? Do you or your partner want a prenup? Are you clueless as to what you should put into that prenup to make sure you are protected? If you answered “yes” to all of those questions, then keep reading because we’ve got answers for you. There’s a huge misconception that prenups only benefit the U.S. citizen, but that’s simply not true! A prenup can (and should) benefit both parties. Stick around to learn about some clauses that benefit non-U.S. citizens in prenups and what your U.S. citizen partner may be asking for from their side. Let’s get into it!
Spousal Support vs. Affidavit of Support
Spousal support, also known as “alimony,” is financial support from one spouse to the other in the event of a divorce. It has nothing to do with immigration, it is a family law requirement that may happen in any divorce, regardless of immigration status. As you probably know, spousal support is often a contentious issue in divorce negotiations. It can become even more complex when one spouse is a non-citizen because of the Affidavit of Support obligations.
What is the Affidavit of Support? Well, when someone comes to America on a marriage visa, the U.S. citizen is required to financially support their foreign partner until that partner either becomes a citizen or works a certain amount of time (typically 10 years of continuous work). The U.S. citizen is required to financially support their immigrant partner even if they get a divorce. The kicker? A U.S. citizen can be responsible for both financial support under an Affidavit of Support and Spousal Support.
So, what sets these two apart? The Affidavit of Support and Spousal Support are both financial support requirements mandated by either the government or a family law court. The Affidavit of Support is based on immigration commitments, while Spousal Support comes from general marriage commitments.
Including Spousal Support in your Prenup
As you can see, U.S. citizens may express hesitancy about providing spousal support due to their already existing Affidavit of Support obligations. However, non-U.S. citizens may feel unprotected without Spousal Support. So, a potential solution is to structure the Spousal Support clause to specify one amount during the period when the Affidavit of Support is in effect and a different amount (or waived) after it concludes. This may require a bit of creativity depending on the situation, so make sure to discuss this in depth with your partner and/or a lawyer.
Including a Primary Residence Clause in your Prenup
You may be wondering what on Earth a Primary Residence clause is? It’s simply a clause added to a prenup that says who can live in the marital home during the divorce and for a period of time after. It typically does NOT transfer ownership of the home, but simply gives the person (likely with less money) a bit of stability in the event of a divorce. Oftentimes, this clause is used by stay-at-home parents who may be vulnerable in a divorce without their own income and to provide stability for the children of the marriage. However, this may also be an excellent clause to add for a non-U.S. citizen who may also be particularly vulnerable in the event of a divorce.
Again, the Primary Residence clause basically gives one person the right to live in the marital home while the divorce is pending and even for a period of time after the divorce is final. For example, “Spouse A may live in the marital home during the pendency of the divorce and for a period of one year after the divorce is finalized.” This clause may provide non-citizens with the necessary time to make alternative living arrangements and establish a plan.
Including a Wealth Equalization Clause in your Prenup
Another clause that may be helpful for the non-U.S. citizen party to a prenup is a Wealth Equalization clause. Basically, this clause requires one party (here, the U.S. citizen) to pay the other party (the non-U.S. citizen) a lump sum upon divorce. This is not Spousal Support nor is it part of the Affidavit of Support. It’s an additional and separate payment that attempts to “equal out the wealth” of the parties. The couple can decide exactly what the amount would be and can ensure it makes sense for their situation. This can be helpful for a non-U.S. citizen who has a partner with a lot more wealth than them to make sure they feel protected in the event of a divorce.
A Prenup Provides Clarity
If nothing else, a prenup is a great tool to set expectations and provide clarity in a relationship. When faced with language barriers or navigating complex immigration processes, an international couple might sideline discussions about their finances. However, you’re forced to discuss finances, life goals, and much more with the prenup process. For example, part of the prenup process is a step called “financial disclosure.” Financial disclosure is the sharing of assets, debts, income, and inheritances with your partner. The prenup process mandates that you share everything, and if you hide anything, you risk getting your prenup invalidated. So, the prenup process helps to facilitate clarity in a relationship, which may be especially important for an international couple.
Clauses Your U.S. Citizen Partner May Ask For
Let’s talk about some insights into what a U.S. citizen partner might want to include in a prenup. One clause that U.S. citizens may ask for when they are in a mixed-status relationship is a clause that would require the immigrant partner to start the citizenship process by a certain date. Wondering why? Well, here’s the scoop: the U.S. citizen is on the hook for supporting their immigrant partner financially until that partner either becomes a citizen or completes a solid decade of continuous work. Even if they never get citizenship and a divorce is on the horizon, guess what? The U.S. citizen still has to provide financial support. So, nudging the immigrant partner to kickstart the citizenship process by a specific date? It’s a win for them.
Another clause (or set of clauses) they may be interested in is limiting what they are obligated to pay the immigrant spouse in the event of a divorce, such as through property division or spousal support. Why? Because they are already on the hook for the Affidavit of Support and they probably want to limit just how much financial support they are giving to their potential immigrant ex. And, yes, it is possible to be required to pay both money under the Affidavit of Support and Spousal Support.
From Primary Residence and Wealth Equalization clauses to modifying Spousal Support in a prenup, there are tons of ways a non-U.S. citizen can feel protected through a prenuptial agreement. Both partners in an international relationship should be able to walk away feeling supported by their agreement. And beyond legalities, a prenup becomes a tool for clarity and open communication, vital for international couples navigating language barriers and immigration complexities. So, what are you waiting for? Get started on your prenup today!
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]