Can a prenup protect me when marrying a non citizen?
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The decision to marry a non-citizen can be difficult, and many people turn to prenuptial agreements for protection.
Benefits of Signing a Prenuptial Agreement When Marrying A Non-Citizen
In most marriages, it is a good idea to have a prenuptial agreement, especially if you want to protect assets accrued prior to marriage. This is particularly true if this is your second marriage, or if you have children from a previous marriage or relationship.
There is also an additional risk of significant financial liability if your spouse is not a US citizen.
If you are the higher wage earner or have significantly more assets than your potential spouse, a prenup can offer you both peace of mind.
Areas of Caution When Signing A Prenuptial Agreement When Marrying A Non-Citizen
One of the most obvious concerns for people marrying non-citizens is how having a prenup will look to immigration officials. You don’t want to give the impression that the marriage is happening for financial reasons and it does help to show co-mingling of assets.
However, legitimate marriages have prenups, and a well-drafted agreement that is fair to both parties and makes sense for the situation won’t necessarily give a bad impression.
Another thing to keep in mind is that you may need to sign an Affirmation of Support for your spouse, which in which you are acknowledging that you have the means to financially support your spouse at a minimum level of 125% of the federal poverty threshold and accept legal responsibility for their financial support. A prenup cannot absolve you of this obligation and you are not released from this obligation until your spouse becomes a United States citizen, permanently departs the country, or is credited with forty quarters of coverage via the Social Security Act.
As long as your prenup provides for the requisite standard of support for your spouse, a prenup can certainly help you in protecting your other assets.
How to Ensure Your Prenup Is Enforcible
The prenup also needs to follow the general standards of enforceability. It can’t be completely unconscionable. It can’t be entered into by fraud or duress.
One key way to ensure it is enforceable is to make sure your spouse understands the agreement. One solution is to have the document translated into your spouse’s native language (ideally by an attorney fluent in the language), so that they can fully read and understand the terms. You absolutely want to ensure they have their own attorney who can review the agreement and advocate for their interest. Ideally, this attorney would also speak their native language or have access to an interpreter.
You also want to get this done well in advance of the wedding. It can look like duress if a person is presented with a prenup just days before the wedding. To enforce it you want to show they have ample time to review and discuss with their own attorney.
A prenup is beneficial to any marriage and having the financial stakes clearly laid out from the start can help both parties feel like the marriage is for love and not money. While there are many considerations when mixing marriage and immigration, a well-drafted prenup by an experienced attorney can be the key to protecting your assets.
Schedule your call to learn how a prenup can protect you.
