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Prenuptial Agreement and the I-864 Affidavit of Support

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You are talking 2 different things.

I-864 is a contract between sponsor and the government, the petitioner is obligated to repay the government for any means tested benefits that the immigrant may use, this has nothing to do with possible division of the spouse's assets or pay alimony which a pre-nup is designed to set up.

Pre-nup is a contract between husband and wife, I-864 is contract between sponsor and government.


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You are talking 2 different things.

I-864 is a contract between sponsor and the government, the petitioner is obligated to repay the government for any means tested benefits that the immigrant may use, this has nothing to do with possible division of the spouse's assets or pay alimony which a pre-nup is designed to set up.

Pre-nup is a contract between husband and wife, I-864 is contract between sponsor and government.

Well, that's not technically correct. There are cases where the immigrant has been successful in utilizing the existence of the Affidavit of Support when negotiating the terms of the dissolution on marriage. Now, whether a prenup can serve to mitigate the exposure that a USC has, I can't say. Chances are, I'd surmise NOT as the family law courts tend to strike many elements of a prenup contending that the repsondent has his or her back to the wall if they are not inclined to sign it.


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But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

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But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

Well, yes, you could try to mitigate the potential impact of the I-864 by constructing a pre-nup that has terms that are identical to the Affidavit of Support, but with one major exception, that the US government is not a party ot that prenup. However, as I said, whether this would in fact work depends highly upon any readiness family courts in your jurisdication have to attempt to strike terms that appear in their eye to be placing a respondent in a position of duress. This is due in part to the unconscionability rules that govern prenuptial agreements that are significantly looser than general contract law.

For example, the Principles of the Law of Family Dissolution known as the ALI Principles, asserts that a court shall not enforce a premarital agreement that has within its language a term that would work a "substantial injustice" under certain circumstances. Furthermore, many premarital agreements are unenforceable if it can be proven that the respondent was coerced, pressured or basically placed in a position to sign it. In other words, the Court could find the prenup unenforceable if it appears that the signature of the alien was placed on it involuntarily.


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Are there any cases of a prenuptial agreement that has successfully lessened damages that the I-864 affidavit of support can impose?

YES!

But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

YES a prenup can protect you from this. And they are done all the time. And yes successfully used in a prenup in this manner.

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Are there any cases of a prenuptial agreement that has successfully lessened damages that the I-864 affidavit of support can impose?

YES!

But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

YES a prenup can protect you from this. And they are done all the time. And yes successfully used in a prenup in this manner.

I would expect that any prenuptual agreement that would ultimately protect you would also protect you from the Stump v. Stump sort of issue.

Of course, the enforceability of such agreements can be tenuous.

Edited by pushbrk

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Are there any cases of a prenuptial agreement that has successfully lessened damages that the I-864 affidavit of support can impose?

YES!

But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

YES a prenup can protect you from this. And they are done all the time. And yes successfully used in a prenup in this manner.

I would expect that any prenuptual agreement that would ultimately protect you would also protect you from the Stump v. Stump sort of issue.

Of course, the enforceability of such agreements can be tenuous.

1) MAKE SURE YOU DO THE PRENUP AS SOON AS POSSIBLE BEFORE THE MARRIAGE IN USA, IDEALLY 2-3 MONTHS PRIOR TO THE WEDDING DATE, thus you have 90 days once the spouse arrives to get on it and get in to see attorneys to draw up the prenup 2 plus months prior to the wedding date. If you wait and spring that prenup on the spouse from other country at last week or day before wedding the chances are it will be struck down in court of law, but if they sign it a month or more before marriage then they have had plenty of time to think about it and decide to not do it if they chose to, thus not under duress.

2) AND ALSO MAKE SURE THE SPOUSE HAS THEIR OWN ATTORNEY THERE AT THE PRENUP SIGNING TO GO OVER THE AGREEMENT AND YOU HAVE YOUR ATTORNEY(and make sure the attorneys do not work in same offices or are related or working together for that will cause the prenup to be null and void).

3) AND point out to your attorney what you want in the prenup including the waiver of spouse's rights to that I-864 along with whatever else you want them to waiver to protect. AND best that you should have told your spouse to be that you would require or want a prenup prior to you getting married instead of springing it on them until last minute once they arrive, better to find out ahead of time their true intentions instead of after they arrive in the USA.

:whistle:

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Are there any cases of a prenuptial agreement that has successfully lessened damages that the I-864 affidavit of support can impose?

YES!

But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

YES a prenup can protect you from this. And they are done all the time. And yes successfully used in a prenup in this manner.

I would expect that any prenuptual agreement that would ultimately protect you would also protect you from the Stump v. Stump sort of issue.

Of course, the enforceability of such agreements can be tenuous.

1) MAKE SURE YOU DO THE PRENUP AS SOON AS POSSIBLE BEFORE THE MARRIAGE IN USA, IDEALLY 2-3 MONTHS PRIOR TO THE WEDDING DATE, thus you have 90 days once the spouse arrives to get on it and get in to see attorneys to draw up the prenup 2 plus months prior to the wedding date. If you wait and spring that prenup on the spouse from other country at last week or day before wedding the chances are it will be struck down in court of law, but if they sign it a month or more before marriage then they have had plenty of time to think about it and decide to not do it if they chose to, thus not under duress.

2) AND ALSO MAKE SURE THE SPOUSE HAS THEIR OWN ATTORNEY THERE AT THE PRENUP SIGNING TO GO OVER THE AGREEMENT AND YOU HAVE YOUR ATTORNEY(and make sure the attorneys do not work in same offices or are related or working together for that will cause the prenup to be null and void).

3) AND point out to your attorney what you want in the prenup including the waiver of spouse's rights to that I-864 along with whatever else you want them to waiver to protect. AND best that you should have told your spouse to be that you would require or want a prenup prior to you getting married instead of springing it on them until last minute once they arrive, better to find out ahead of time their true intentions instead of after they arrive in the USA.

:whistle:

I would think all this is pretty tenuous with a foreign spouse. I'd want some evidence the agreement was discusssed before the visa was in hand with at least the high points covered. First mention of such a document during the 90 day window to marry, could in itself qualify as duress in some reasonable minds.


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No duress, as long as it is done several weeks or months prior to the date of marriage. Best you ask them or tell them you require it before they even come to the USA or as you said even go for visa interview, better to find out then their true intentions than later on. :thumbs:

Are there any cases of a prenuptial agreement that has successfully lessened damages that the I-864 affidavit of support can impose?

YES!

But in two court cases, "Stump v Stump" and "Cheshire v Cheshire" husbands were ordered to pay their spouses amounts to bring the spouses income up to a level of 125% x poverty. They are required to do this indefinitly.

I am wondering if a prenuptial agreement could somehow mitigate this. And has anybody succesfully used a prenuptial agreement in this manner.

YES a prenup can protect you from this. And they are done all the time. And yes successfully used in a prenup in this manner.

I would expect that any prenuptual agreement that would ultimately protect you would also protect you from the Stump v. Stump sort of issue.

Of course, the enforceability of such agreements can be tenuous.

1) MAKE SURE YOU DO THE PRENUP AS SOON AS POSSIBLE BEFORE THE MARRIAGE IN USA, IDEALLY 2-3 MONTHS PRIOR TO THE WEDDING DATE, thus you have 90 days once the spouse arrives to get on it and get in to see attorneys to draw up the prenup 2 plus months prior to the wedding date. If you wait and spring that prenup on the spouse from other country at last week or day before wedding the chances are it will be struck down in court of law, but if they sign it a month or more before marriage then they have had plenty of time to think about it and decide to not do it if they chose to, thus not under duress.

2) AND ALSO MAKE SURE THE SPOUSE HAS THEIR OWN ATTORNEY THERE AT THE PRENUP SIGNING TO GO OVER THE AGREEMENT AND YOU HAVE YOUR ATTORNEY(and make sure the attorneys do not work in same offices or are related or working together for that will cause the prenup to be null and void).

3) AND point out to your attorney what you want in the prenup including the waiver of spouse's rights to that I-864 along with whatever else you want them to waiver to protect. AND best that you should have told your spouse to be that you would require or want a prenup prior to you getting married instead of springing it on them until last minute once they arrive, better to find out ahead of time their true intentions instead of after they arrive in the USA.

:whistle:

I would think all this is pretty tenuous with a foreign spouse. I'd want some evidence the agreement was discusssed before the visa was in hand with at least the high points covered. First mention of such a document during the 90 day window to marry, could in itself qualify as duress in some reasonable minds.

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I want to know too. So are there any actual cases of somebody using a prenuptial to fight the I-864? If there are any examples can you provide your experience or provide a link to the relevant court case :) Thanks a ton!

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I want to know too. So are there any actual cases of somebody using a prenuptial to fight the I-864? If there are any examples can you provide your experience or provide a link to the relevant court case :) Thanks a ton!

It would be a good read, but since family law is state specific and precedence is mainly jurisdictionally restricted, it would be a difficult application unless you are in the same place.

Edited by fwaguy

YMMV

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I am wondering if anyone has any new information regarding the Prenuptial Agreements as it has been a few years since this was last addressed. More specifically, within the state of Washington. I am consideirng marrying while in China as opposed to obtaining a Fiance Visa and marrying her in Washington. By all accounts, at a minimum, it looks like the best way for any chance of the agreement being uphelp would be by the Fiance Visa route. Thank you in advance for your assiatnce with this question.

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I would just like to read at least one case or story of somebody who used a prenup to lessen the blow of I-864 after a divorce. It would offer some comfort. Maybe there are no such cases.

How do you want to 'lessen the blow'? As in, not make the USC accountable for repaying benefits the immigrant may take advantage of?


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