prenuptial agreement nuts & bolts ('when' and 'how', not so much 'why'...)

[Windblown 0]

When is the best time to be signing a prenup? Can this be done the day of our wedding, to make an extreme example? (I wouldn't choose that route, but just looking ahead to get a rough sense of when to deal with it.)

Also, I'd think that a prenup could easily conflict with I-134 provisions for support of spouse, yes? (I can guess whose law would trump there - probably why people don't draft these things themselves.)

Not to tempt fate, but I guess I would like to understand the range of legal ramifications that would exist with/without prenup as well as provisions of the I-134, for scenarios like the following:

a) "we were married for ten days before we decided we'd had enough," to

b) "we've been growing distant and I think this marriage won't last more than two years,"

c) "s/he fooled me into thinking it was true love until s/he became a permanent resident," to

d) "we were soulmates to the end" (OK, I guess I don't really need to know the legal ramifications in THAT setting...)

Anyway, I'm skipping the emotional component of this for now - just want the cold, legal 'bullets.' If it's not meant to be, I want us both to walk away with only regrets about our failed relationship, not about how we're going to make ends meet, etc.

[Darnell 8,478]

The I-134 is not a 'binding' contract between the USC and the Government.

OTOH, the I-864 is - and you'll be filing it during AOS submittal.

[canadian_wife 1,791]

The I-864, which will be done during AOS trumps the pre-nup. No matter what is said in the pre-nup nor the reasons for the divorce.

Good luck

[JimVaPhuong 4,863]

As has been stated, the I-134 is not legally binding. I know, the document itself claims it imposes a legal obligation on the sponsor, but it's been knocked down in court numerous times. The I-864 was introduced to address changes in the INA that required a legally binding contract. The I-134 is used by consulates as a screening tool.

Do not try to draw up a prenup without an attorney. Laws vary radically between the states, and if any aspect of the agreement is found to be contrary to law then it's possible the entire agreement could be thrown out. Some states severely restrict what either party may potentially give up in a prenup. If you want to ensure that the laws of your state will apply then be sure the prenup contains a Choice of Law clause. Otherwise, the law of the state where the divorce is filed will determine how the prenup is adjudicated.

Don't try to push this off until the day of the wedding. All states require full disclosure, and this often requires both parties be given a minimum amount of time to review and amend the contract before signing. Some states (like California) require both parties to have legal representation if one party is being asked to give up certain rights, such as spousal support.

Consult with a family law attorney.

[baron555 934]

If it's not meant to be, I want us both to walk away with only regrets about our failed relationship, not about how we're going to make ends meet, etc.

If you're having doubts now then why go forward with the relationship?

If the relationship is solid and meant to last forever, why bother with a prenup?

[pushbrk 12,139]

As has been stated, the I-134 is not legally binding. I know, the document itself claims it imposes a legal obligation on the sponsor, but it's been knocked down in court numerous times. The I-864 was introduced to address changes in the INA that required a legally binding contract. The I-134 is used by consulates as a screening tool.

Do not try to draw up a prenup without an attorney. Laws vary radically between the states, and if any aspect of the agreement is found to be contrary to law then it's possible the entire agreement could be thrown out. Some states severely restrict what either party may potentially give up in a prenup. If you want to ensure that the laws of your state will apply then be sure the prenup contains a Choice of Law clause. Otherwise, the law of the state where the divorce is filed will determine how the prenup is adjudicated.

Don't try to push this off until the day of the wedding. All states require full disclosure, and this often requires both parties be given a minimum amount of time to review and amend the contract before signing. Some states (like California) require both parties to have legal representation if one party is being asked to give up certain rights, such as spousal support.

Consult with a family law attorney.

Exactly! I would expect any prenup signed under duress (wedding day or without representation AND time to review) to be not worth the paper it's printed on, if challenged. Certainly the I-864 trumps any prenup.

[dluke77 9]

Q: Why worry about a pre-nup?

A: Love is blinding and look at the divorce rate in the US and I can assume by all the "help me she/he only married for the green card" questions in the forum that the divorce rate may be a little hire for mixed culture/race marriages.

On a more factual note though... the pre-nup is situational based on each individual. Don't let "love" fool you into not getting one. My case for example: I have been working since 15 years old, done almost 20 years active duty in the military. I purchased a home before my first marriage. I had a pre-nup. I got married a second time and had a pre-nup. Got divorced a second time. I started with a 15 year mortgage at about year 10 in the military and paid extra payments and it is already 100% owned by me. So a pre-nup ensured that the house stayed with me through 2 marriages. I guarantee I will not marry a third time without a pre-nup.

In Virginia, even though the house is in my name alone, if there was no pre-nup she would have been able to force the sale of the house and get at least half the profit -- or the judge may have even awarded her possession of the house and left me with the mortgage.

So a pre-nup just helps ensure that what you came into the marriage with you leave with. Anything gained or earned during the marriage should be a 50/50 split--unless otherwise agreed. Pre-nup or not you are still responsible for your beneficiary to NOT become a public charge.

[JlovesA 109]

If you're having doubts now then why go forward with the relationship?

If the relationship is solid and meant to last forever, why bother with a prenup?

The OP clearly stated he isn't interested in discussing why, only how. His reasons for getting a prenup are only the business of him and his future wife.

[Windblown 0]

thanks all for the replies - please don't get caught up in my hyperbole. I'd not seriously meant I would leave a prenup until the caterers arrive!

But if the I-864 trumps, then...why do a prenup at all? Or do you mean it trumps in specifics only?

[pushbrk 12,139]

thanks all for the replies - please don't get caught up in my hyperbole. I'd not seriously meant I would leave a prenup until the caterers arrive!

But if the I-864 trumps, then...why do a prenup at all? Or do you mean it trumps in specifics only?

The I-864 has limited impact, period. Within that limited impact, a prenup will not overcome the contractual basis in the I-864. This doesn't mean your prenup has no value for the myriad of issues not addressed in the I-864. You'll better understand if you read the I-864.

[gyi 1]

A Pre-Nup or legally known as a ANTENUPTIAl, can be viewed as an insurance policy to retain certain assets or conditions of divorce you may have going into the marriage if a divorce happens, the assets that would be acquired in the marriage can also be included. Those assets can be of both the couples. He may have assets that he would want to retain if a divorce happens and she may want to retain assets she has, so going into the marriage these conditions are laid out in a "pre-nup". A lawyer should be retained both parties need to have legal representation and the right to review the contract. The I864, is an agreement of support for means test benefits as long as you do not try and write off the I864 in the Pre-Nup there should be no conflict, but if you did try and include the I864 and that is found void, most pre-nup's have allowances for items that may not be in compliance while keeping the legal parts in the document valid as a contract. Cost legal zoom. com $750.00/ Private atttorney $1,000.+.

[DoneWaiting 15]

The OP clearly stated he isn't interested in discussing why, only how. His reasons for getting a prenup are only the business of him and his future wife.

Second that.

Signing an "ANTENUPTIAL" has nothing to do with doubts, assurance, love or any other miss concepts we may have due to backgrounds, religions or "moral" aspects. Things [for lock of better words] happens..

Best way to solve this facet is getting an advise directly form a legal advisor in your state, you can also obtain a do it yourself kit. Some attorneys will have the other party sign the pre-nup in advance.

[SuperDuper! 230]

All good replies, well, almost all.

What isn't being included in the discussion is how your state laws may already protect your interests.

In the Western states, we are all "Community Property" states. Family law is BLACK AND WHITE regarding what is SEPARATE and what is COMMUNITY property and assets in a marriage.

Unless you have a complicated real estate or own your own business, you would be surprised how UNNECESSARY a prenup may be for you.

After you consider the awkward moments it produces, and then the expense of having 2 lawyers involved in signing it, you may realize how little it offers to "protect" you.

Plus, a judge has the discretion of just throwing your prenup out of court if he gets a whiff it is unfair.

You betcha!

[Windblown 0]

All good replies, well, almost all.

What isn't being included in the discussion is how your state laws may already protect your interests.

In the Western states, we are all "Community Property" states. Family law is BLACK AND WHITE regarding what is SEPARATE and what is COMMUNITY property and assets in a marriage.

Unless you have a complicated real estate or own your own business, you would be surprised how UNNECESSARY a prenup may be for you.

After you consider the awkward moments it produces, and then the expense of having 2 lawyers involved in signing it, you may realize how little it offers to "protect" you.

Plus, a judge has the discretion of just throwing your prenup out of court if he gets a whiff it is unfair.

You betcha!

Tantalizing reply, Hopp. OK, I'm convinced. I won't do it.

hey, wait a minute...you're not my FIANCEE, are you? d'oh!

Seriously, though, I'm not sure how to check into the key details you mentioned - specifics of state law, that is. No complicated real-estate or offshore accounts, just my half-done mortgage, some IRA and 401K holdings, etc.

As for sources of local specifics, I'm thinking an attorney who specializes in prenups isn't likely to talk me out of signing up for one...I suppose a divorce attorney might be a good POC. It seems like an issue worthy of more than just "asking around", really.

Edited June 17, 2010 by Windblown

[SuperDuper! 230]

Tantalizing reply, Hopp. OK, I'm convinced. I won't do it.

hey, wait a minute...you're not my FIANCEE, are you? d'oh!

Seriously, though, I'm not sure how to check into the key details you mentioned - specifics of state law, that is. No complicated real-estate or offshore accounts, just my half-done mortgage, some IRA and 401K holdings, etc.

As for sources of local specifics, I'm thinking an attorney who specializes in prenups isn't likely to talk me out of signing up for one...I suppose a divorce attorney might be a good POC. It seems like an issue worthy of more than just "asking around", really.

Buy the NOLO PRESS book on prenups, it helped me make my decision. http://www.nolo.com/legal-encyclopedia/article-29569.html

But definitely be familiar with the family laws of your state. You may already be protected by them. Definitely document what assets you have prior to marriage. Collect bank and financial statements prior to marriage and file them away for your records. Keep cars and houses in your name prior to marriage. Don't intermingle assets that are yours alone--this is key!