In an increasingly connected world, love knows no borders. Marrying someone from another country is a beautiful testament to this, but it also introduces a range of legal complexities that can impact your future together.
Understanding how to protect yourself when marrying a foreigner is crucial to ensuring that your union starts on a solid foundation of mutual respect, understanding, and security. A key component of this protection is a well-thought-out prenuptial agreement.
“Daniel and Ayal were very knowledgeable and responsive. They made the prenup process much easier than I expected – which was a relief because my situation was somewhat out of the box.”
Unique Challenges and Considerations
Certain issues come with drafting a valid prenup for a spouse who is a non-US citizen. Whether it’s how other countries’ laws apply or if the terms need to be translated into a different language, there are a few things couples need to consider.
1. Language Barriers
When one spouse does not speak English as their first language, ensuring that the prenup is fully understood becomes a challenge. It’s crucial that the agreement is translated, and possibly even negotiated, in a language that is comfortable for both parties, to ensure full comprehension and consent. This is particularly important in California, where a prenup isn’t valid if one party doesn’t understand the terms.
2. Disclosure Requirements
Under California law, full and fair disclosure of all assets and liabilities must be made by both parties before signing the prenuptial agreement. Failure to provide comprehensive financial disclosure can render the agreement invalid. This requirement can be complex if the foreign spouse has assets in different jurisdictions or under different legal systems.
3. Affidavit of Support
For US citizens marrying a non-US citizen, the Affidavit of Support represents a significant legal obligation—pledging financial support to the foreign spouse. This contract with the US government stands regardless of marital status. This makes it a critical point of discussion in the prenup. The agreement can delineate these obligations, providing protections that limit the US citizen’s financial responsibilities to those explicitly required by the affidavit. However, this also presents a risk to the foreign spouse’s immigration status. For this reason, we highly recommend speaking to a qualified prenup attorney.
4. Jurisdiction
The question of which country’s laws will govern the prenup is paramount, especially for couples who plan to live outside the US or who have assets in multiple countries. Laws around marriage, divorce, and property rights can differ drastically across borders, impacting the enforceability of a prenuptial agreement. Some don’t recognize a prenuptial agreement with a foreign spouse at all. So, engaging legal counsel in all relevant jurisdictions may be necessary.
5. Choice of Law
The agreement should specify which state’s law will govern the agreement. This is crucial because laws regarding marriage and divorce can vary significantly from one jurisdiction to another. Since California is a community property state, this also impacts how assets are divided upon divorce, which might differ greatly from the laws in the foreign spouse’s home country.
Related: What Are the Pros and Cons of a Prenup?
What If My Foreign Spouse Gets a K-1 Visa?
The K-1 visa, commonly known as the fiancé(e) visa, allows a foreign national engaged to a U.S. citizen to enter the United States to marry within 90 days of arrival. Given this timeframe, preparing a prenuptial agreement requires careful planning to comply with both the visa conditions and California’s legal requirements for such agreements. Here’s what those steps could look like:
- Early consultation. Ideally, the process should start well before the foreign fiancé(e) arrives in the U.S. Since it can take a year or more to get approval for a K-1 visa, it may be a good idea to start the prenup process before it’s approved. This involves initial consultations with attorneys to discuss the terms of the prenuptial agreement.
- Drafting the agreement. Once the terms are agreed upon, the drafting process begins. This should be done as soon as possible to allow ample time for review and adjustments. It’s crucial that the agreement be tailored to comply with all applicable legal standards.
- Translation and understanding. If the foreign fiancé(e) is not proficient in English, the prenuptial agreement needs to be translated into a language they understand fluently. Moreover, it’s important to ensure they have a full grasp of the document’s contents and implications.
- Legal representation. Both parties must have the opportunity to seek independent legal advice. This is not only a recommendation, but a requirement in California to prevent issues of duress or unfair advantage. The foreign fiancé(e) should have a lawyer who can communicate in their native language if necessary.
- Meeting the 7-day requirement. Under California Family Code Section 1615, there must be at least 7 days between the time when the agreement is first presented and when it is signed. Keep in mind that this also needs to happen within the 90-day period allowed by the K-1 visa.
As you can see, the process of getting a prenuptial agreement with foreign spouse requires a thorough plan to make sure it complies with immigration laws, California law, and more. This is why it’s best to speak with an experienced prenup attorney.
Related: What Clauses Are Most Important to Include in My Prenup?
The Importance of a Prenuptial Agreement With a Foreign Spouse
Marrying someone from a different country adds layers of complexity to the already intricate process of marriage. However, it also comes with a lot of legal gray areas regarding financial assets and immigration. Despite the challenges, a prenup is often a good choice when marrying a foreign spouse.
A prenup is not only essential for clarity and protection but also for planning the couple’s financial future together. It ensures that both partners have a mutual understanding of their financial arrangement before entering into marriage, reducing the potential for conflict and misunderstanding later on. This is particularly true in two areas: asset protection and estate planning.
Asset Protection
One of the primary purposes of a prenuptial agreement is to protect individual assets. When one spouse is not a US citizen, this becomes even more crucial. A prenup can specify which assets remain individual property and how marital assets are divided in the event of a divorce, thereby safeguarding one’s financial interests and providing a clear understanding of financial rights and responsibilities from the outset.
Estate Planning
A prenup also serves as a critical component of a couple’s estate planning. It ensures that assets are distributed according to the couple’s wishes rather than being subject to the default laws of any one country, which can vary widely and may not reflect their intentions.
Are you in California and planning to marry someone from another country? Navigating the intricate path of love, law, and international borders can be daunting, but you don’t have to do it alone. At Cyrus Pacific Law, we focus specifically on prenuptial agreements and have years of experience in their complexities. To get started, contact us today or give us a call at 424-626-2939.