International relationships are a beautiful testament to love transcending borders, cultures, and backgrounds. While they bring together people from different parts of the world, they can also involve unique legal complexities, particularly when immigration is part of the picture. U.S. citizens marrying non-U.S. citizens should consider including certain immigration-related clauses in their prenups to ensure a smooth journey together into marriage. We spoke with Immigration Attorney, Julia Funke about some common clauses that go into prenups where immigration is a concern. She explained two main elements that international couples should consider when crafting their prenuptial agreements: addressing affidavit of support obligations and setting a timeline for seeking U.S. citizenship. We dive in deeper on this topic below.
What is a prenup?
As a bit of a background, a prenuptial agreement (or a “prenup”) is a contract between two future spouses, made before getting married. The agreement typically outlines financial responsibilities during the marriage and in the event of a divorce. For example, a prenup can address how property will be divided, how to address spousal support (i.e., alimony), and how finances will be handled during the marriage. Prenups are made to fit each individual couple’s needs. Some couples may need clauses about pets, while others may have clauses about businesses. This article is all about what U.S. citizens marrying foreigners should put into their prenup!
What is an Affidavit of Support?
Before we dive into what clauses international couples should consider, let’s talk about immigration law. There is something known as an Affidavit of Support, which the U.S. citizen spouse of an immigrant will need to sign to sponsor the green card. The Affidavit of Support is a legally binding agreement between a U.S. citizen and the government to ensure that their immigrant spouse does not become a public burden. That means, when a U.S. citizen signs an Affidavit of Support, they are essentially agreeing to take financial responsibility for their immigrant spouse until they become a U.S. citizen or obtain 40 quarters of qualifying work under the Social Security Act (this is equivalent to 10 years of continuous work). And, yes, this requirement to support a foreign spouse persists even in the event of a divorce. What that means is that if your foreign spouse receives any designated federal, state, or local means-tested public benefits while the Affidavit Support obligations are in effect, the U.S. government can ask you to reimburse them.
Clause #1: Addressing Affidavit of Support obligations
The first thing that international couples need to consider addressing in their prenup is the Affidavit of Support obligations. There are two interests at play here: the U.S. citizen wants to protect themselves from potentially being used by a foreign immigrant for a green card, while the U.S. government wants to make sure it doesn’t become financially responsible for everyone being sponsored for a green card. In these scenarios, the Affidavit of Support will supersede any prenup if the clauses are in direct conflict. That is why it’s essential to make sure that any prenuptial agreement takes into consideration the immigration obligations, so there are no contradicting clauses. This can create clarity and transparency in a relationship and also ensure that all parties are fully aware of their responsibilities, both to the government and to their partner.
To achieve this, international couples can draft a clause in their prenup that clearly states that any waiver of spousal support should exclude any remaining obligations under the Affidavit of Support. This ensures that both partners are on the same page regarding their financial responsibilities, providing clarity and peace of mind for the U.S. citizen spouse.
Clause #2: Setting a timeline for citizenship
Another important clause that international couples should consider adding when drafting a prenuptial agreement is setting a timeline for the foreign spouse’s pursuit of U.S. citizenship. Affidavit of Support obligations terminate when the sponsored immigrant becomes a U.S. citizen (or when they have 40 quarters of qualifying, continuous work, which is equivalent to 10 years). Typically, with a green card obtained through marriage, one can apply for citizenship after three years instead of the standard five-year waiting period.
Including a provision in the prenup that outlines when the foreign spouse will seek U.S. citizenship can be a strategic move. This clause ensures that the Affidavit of Support obligations come to an end as soon as they possibly can, to relieve the U.S. citizen of financial responsibility, especially in the event of a divorce. By agreeing on a specific timeline for applying for citizenship, the couple not only aligns their expectations but also offers the U.S. citizen partner the assurance that their financial obligations will not be indefinite.
How do these clauses benefit the U.S. citizen?
Prenups have the ability to protect both parties (in different ways), simultaneously. You can achieve a prenup agreement that both parties feel good about, it just may take some negotiations and compromises. The two clauses discussed above can benefit the U.S. citizen partner in two main ways.
First, adding in the clause that clarifies the Affidavit of Support obligations is a great way to set expectations for both parties. When it’s in writing in a prenup, both people are aware of what they are responsible for, especially the U.S. citizen. Putting this clause in a prenup can make sure that the U.S. citizen is cognizant that their prenup doesn’t override their Affidavit of Support obligations, and they still must satisfy those requirements first. In other words, nothing they put into their prenup is going to directly wipe out their Affidavit of Support responsibilities.
Secondly, putting in a timeline for applying for a green card is a great way to align expectations for the couple, while simultaneously providing a layer of protection to the U.S. citizen. Remember, once an immigrant spouse receives U.S. citizenship, their partner is relieved of their financial responsibility to support them. So not only does the couple agree on when the foreigner will apply for citizenship, which sets clear expectations, but it also provides some peace of mind to know that there are steps being taken to alleviate the Affidavit of Support obligations.
The bottom line
International couples embarking on the journey of love across borders should consider the legal aspects of their relationship, particularly when immigration is a factor. Addressing Affidavit of Support obligations and setting a timeline for seeking U.S. citizenship in a prenup is a proactive step that not only safeguards the interests of both partners but also strengthens the foundation of their relationship. By incorporating these key provisions, international couples can navigate the complexities of immigration with confidence, ensuring that their love story continues to flourish.
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]