What to know about immigration & your prenup

Can I get a prenup when marrying a non-US citizen? 

Yes! Prenups can be extremely helpful for people that are sponsoring their partner who is not a US citizen because it adds an extra layer of protection. As you may already know, when you sponsor a non-US citizen to come to the US under certain visas, you are responsible to financially support them for a number of years, even if you get divorced. 

The protection a prenup provides is ensuring that certain assets you own are protected in a divorce. In other words, you don’t lose out on assets from the divorce AND the sponsorship of the visa.

Prenup issues you may encounter when marrying a non-US citizen

We totally understand that anything legal-related can be difficult, confusing, and frustrating. But it can be a whole new world of challenges when you marry a non-US citizen. Here are some issues you may face when obtaining a prenup with a non-US citizen.

 that a document signed in a foreign country will be recognized in another country (as long as both countries are part of the convention).

The protection a prenup provides is ensuring that certain assets you own are protected in a divorce. In other words, you don’t lose out on assets from the divorce AND the sponsorship of the visa.

If your partner is unable to read and understand the terms of the prenup, that can pose a huge issue, and even get your prenup thrown out at a later date. Making sure you have a translator is crucial here.

The second option is to have the prenup notarized by a local foreign notary and then authenticated for use in the US. US embassies and consulates offer authentication services. For countries who are parties to the Hague Apostille Convention, this is a fairly simplified process. An apostille is a document which authenticates the seals and signatures of officials on public documents so that a document signed in a foreign country will be recognized in another country (as long as both countries are part of the convention).

The protection a prenup provides is ensuring that certain assets you own are protected in a divorce. In other words, you don’t lose out on assets from the divorce AND the sponsorship of the visa.

You may run into a big question about property: what do I do with my (or my partner’s) foreign assets? This may include a house, bank account, investment fund, or other things. Can a prenup protect these?

For starters, you should include all assets, including foreign assets, in your financial schedule as transparency is necessary for full disclosure.

And, yes, a prenup can protect foreign assets. However, there may be some obstacles, such as having trouble valuing the foreign asset in a divorce. Another obstacle may be trying to enforce a US court order in a foreign country.

Visas and trips overseas are often limited by time, which can make getting a valid and enforceable prenup difficult. Let’s say your partner is on the K-1 fiance visa and you two have to get married before the 90 days is up. Well, this poses an issue because prenups must be done a significant amount of time before the wedding day. Some states even have harsh requirements here and will automatically invalidate a prenup done too close to the wedding day, like in California. We recommend starting the prenup process three to six months before the wedding to give yourself enough time. The 90 days may be enough time for you or may not. For example, if negotiations between you and your partner take months, which can happen, you’ll run out of time to execute a valid and enforceable prenup in that 90 day window.

If traveling to the US is a problem, then it may make it extremely difficult to get a prenup. Prenups should be notarized and sometimes witnessed, which means that both partners (even the non-US citizen) must sign the prenup in front of the notary and witnesses. You may do the notarization process separate from your partner.

Timing can also pose a challenge on travel. Depending on the visa type chosen for your partner, they may not be able to travel to the US on a visitor visa while their immigration paperwork is pending. Marrying a US citizen shows immigrant intent, which means intent to live in the US on a permanent basis. A visitor visa requires nonimmigrant intent, which means that you DON’T intend to stay in the U.S. Once an immigrant petition has been filed for your partner, they can no longer prove nonimmigrant intent, meaning they won’t likely be able to travel / gain admission into the US in the meantime. You’ll want to time the filing of immigration paperwork in consideration of travel plans, prenup negotiations, etc. to minimize any difficulties.