Prenup + immigration scenarios
Let’s walk through some examples of how prenups and immigration collide and what it might look like in the real world.
My partner doesn’t have a visa yet but we want to get a prenup
Matt and Katie are planning on getting married. Matt is from Canada and is a non-US citizen, while Katie is a US citizen. Matt has not been able to obtain a US visa yet, but they know that they want a prenup before getting married.
There are generally three ways to go about getting a prenup in this situation:
- Have Matt travel to the US for a week or so just to have the prenup finalized, signed, and notarized and then have him return back to his home country;
- Apply for the K-1 fiance visa and wait until that clears to get the prenup done during that 90-day visa stay; or
- Have the prenup done virtually and then have it notarized at a local US embassy.
The only problem with Option 2 is that you may run out of time to get the prenup done. The K-1 visa is valid for 90 days, and you must get married before the end of those 90 days. The problem arises because of timing: we recommend you get the prenup process started three to six months before the wedding day. The 90 day timeline of the K-1 visa can make this prenup process difficult if negotiations take too long or other obstacles present. And keep in mind, in some states, prenups are automatically invalid if done too close to the wedding day, such as in California.
Even if you plan to execute the prenup during the 90-day visa stay, it’s likely best to start the prenup negotiations while waiting for the K-1 visa to be approved (which can take up to a year or more anyway), to ensure adequate time to finalize everything.
Bottom line: Your best bet is to have your partner fly out to get the prenup done before getting married to avoid any timeline issues with the prenup process.
Divorcing a non-US citizen without a prenup
John and Maria have been married for two years. Maria is a citizen of Mexico, living in the United States based on her marriage-based green card. John is a US citizen. They do not have children. They also did not execute a prenup before their marriage. The outcome of the divorce could be as follows (depending on the state and circumstances):
- John is required to pay alimony to Maria for a period of time because Maria’s unemployable due to her English speaking skills.
- John is required to sell the house they purchased during the marriage and split the proceeds with Maria.
On top of the divorce settlement above, John is also required to financially support Maria according to the requirements laid out by her green card sponsorship for a period of around 10 years (until she reaches 40 quarters of qualifying work in the US) or until she becomes a US citizen. These obligations are not released even if they get divorced. This is because in sponsoring Maria’s green card, John was required to execute an affidavit of support, which is essentially a contract with the US government.
While you cannot execute a prenup to get around your obligations to the US government in sponsoring the marriage-based green card, a prenup CAN protect your assets in the event of divorce. Without a prenup, the stakes are twice as high.
In the scenario above, had John had a prenup, he could’ve avoided paying even more assets through the divorce settlement and only been required to pay what was necessary under the green card. As you can see, for those marrying a non-US citizen, a prenup is especially important.
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