Spousal Visa - Protection of assets(merged)

[rayman26 4]

1 hour ago, missileman said:

Huh?  Hiding assets?  not at all.....A trust is a perfectly legal way to privately allocate estate assets.

From my attorney:

 

Also, free to anybody who may find it useful.   I am simply posing on this board to get real world advice/anecdotes to get every piece of information I can. 

 

Hello Brian,

 

Your email addresses multiple issues. After review and discussion with other attorneys in the firm, a prenuptial agreement is the best fit for your situation. Creating an irrevocable trust (blind trust) with a termination date in order to hide your assets is more likely to harm you. You can set up a trust without disclosing your assets. If a divorce occurred and the trust somehow became common knowledge it would be very negative for you. The court would likely ignore the trust and decide that it is all community property. Also, if you were to do an irrevocable trust you can have no control over any of the properties that you rent or how the money is to be invested. If you retain any interest or control the court will ignore the trust and consider it  property that can be equitably split at divorce.  We can set a purpose or termination date but the trust can’t go against public policy. If you create a trust that can be seen as hiding assets from your spouse, it will go against public policy.

 

Also, any money or assets that was disbursed from the trust would be considered income, and therefore community property once you were married. If you used this income to pay off the debt of a commercial building, that building would be owned by you and your spouse. Therefore, there would not be any benefit of doing a trust and a prenuptial agreement.

 

We can set up a trust if that is what you want. A trust will be much more expensive than a prenuptial agreement, and in our opinion, less effective.  If you create an irrevocable trust (giving up all rights to the property) with a termination date set  We understand your concern of starting a marriage with your fiancé knowing that you don’t want her to have an effect on the other assets. This is something that you will need to explain to her, the same way that you explained it to us. Divorce is a worst case scenario and you have a legal right to declare your separate property before marriage.

 

Next, is the issue of your wife seeing an attorney about the agreement. One, she does not have to seek counsel but will have to sign off, stating that she did not feel like she needed to. Two, the court almost always will approve a prenuptial agreement if the spouse sought legal counsel. Three, her attorney will likely explain to her what the agreement means and what the overall effect would be on marriage and divorce. This is why the court will almost never void a prenuptial agreement where both parties had counsel. It is unlikely the counsel  would suggest not to sign an agreement or to bargain for more.

 

Finally, is the issue of your wife coming on a 90 day visa requiring marriage. The court could weigh this and decide that it made the prenuptial agreement void (highly unlikely if she gets counsel). With that said, as long as she signs the prenuptial agreement within a reasonable time it is fine. The longest the court has overturned in Washington is 3 days before the wedding (was sole reason). The court will take everything as a whole and decide. The farther out from the wedding, the better it will look for you. It would be best to get these documents to your fiancé as soon as possible and then have her review them with an attorney once she gets to the States.

 

To sum it up, there are many disadvantage to doing a trust and not as many benefits. The only negative (or positive) to a prenuptial agreement is that you will have to tell your future spouse about what you own. The assets will be more protected through a prenuptial agreement and less likely to be touched in the case of a divorce. Nothing is set in stone because all the factors can be weighed. If we do things appropriately the factors will weigh in your favor.

 

[Boris Farage 353]

What state are you located in? Can make a lot of difference in how a prenuptial agreement is drafted in order to be enforceable. Looks like you're in a community property state, like I am (California).

 

My ex and I had a prenup, she didn't want it at first, said it wasn't romantic, and I bought into it. Then her lawyer father convinced her to do it, and my lawyers were pleased as well. However I was overly generous with her in the prenup -- again, I was swept away by romance -- and I'm stuck holding the bag for quite a bit more time (unless she remarries). I challenged it in court during the divorce, thought it might not be enforceable given the generosity of the terms, but the attorney who worked on her side (we had separate representation, needed here in California) locked it down tight. I had some of the problems your lawyer raises in the email -- I had a couple of trusts and offshore accounts that I was not expecting to come into the mix, but she knew about them from the prenup, so they did. 

 

Think about what your next steps are, take your time. Your lawyer's advice seems rather sound to me, but I'm not an attorney. Also, you are right to separate the money from the romance and love. I was very young at the time and wasn't able to do this properly, you sound like you are being proactive here. Also get your lawyer to explain to you the ramifications of the decisions you are making. Ask questions -- you are paying them for answers! You never know what life will bring, protecting yourself and your fiancee is the right thing to do.

[Ontarkie 13,918]

18 minutes ago, Boris Farage said:

What state are you located in? Can make a lot of difference in how a prenuptial agreement is drafted in order to be enforceable. Looks like you're in a community property state, like I am (California).

 

My ex and I had a prenup, she didn't want it at first, said it wasn't romantic, and I bought into it. Then her lawyer father convinced her to do it, and my lawyers were pleased as well. However I was overly generous with her in the prenup -- again, I was swept away by romance -- and I'm stuck holding the bag for quite a bit more time (unless she remarries). I challenged it in court during the divorce, thought it might not be enforceable given the generosity of the terms, but the attorney who worked on her side (we had separate representation, needed here in California) locked it down tight. I had some of the problems your lawyer raises in the email -- I had a couple of trusts and offshore accounts that I was not expecting to come into the mix, but she knew about them from the prenup, so they did. 

 

Think about what your next steps are, take your time. Your lawyer's advice seems rather sound to me, but I'm not an attorney. Also, you are right to separate the money from the romance and love. I was very young at the time and wasn't able to do this properly, you sound like you are being proactive here. Also get your lawyer to explain to you the ramifications of the decisions you are making. Ask questions -- you are paying them for answers! You never know what life will bring, protecting yourself and your fiancee is the right thing to do.

Except you had a USC spouse with a lawyer for a father. All the legal advice she needed between him and her own attorney. 

 

Try a foreign spouse who is being told you can't come to the US with our child unless you do this. And he is pretty much saying that. Go read his post. He wants to bring the child here away from her and find another way to bring her here. So it's sign or lose your child.

 

You can bet your last dollar her lawyer will use all this against the prenupt and if he is in California,  from what I've seen on  VJ the immigrant will get what they want in court. 

 

This is what we are trying to explain. 

If he wants a prenup it needs to be iron clad here, there and in both languages and with multiple attorneys in both countries. For it  to have any chance. 

 

[Going through 5,668]

On 6/18/2019 at 5:46 PM, rayman26 said:

Next, is the issue of your wife seeing an attorney about the agreement. One, she does not have to seek counsel but will have to sign off, stating that she did not feel like she needed to. Two, the court almost always will approve a prenuptial agreement if the spouse sought legal counsel. Three, her attorney will likely explain to her what the agreement means and what the overall effect would be on marriage and divorce. This is why the court will almost never void a prenuptial agreement where both parties had counsel. It is unlikely the counsel  would suggest not to sign an agreement or to bargain for more.

I am very much curious about the question(s) you posed to your attorney to garner this type of response.  Off the cuff, the response reads as though you were asking if you can "get away with" having a prenup without your wife seeking legal counsel before signing it/hoped to encourage your wife to sign it without seeking legal counsel, for fear that any attorney may question the prenup's fairness to her?

Edited June 20, 2019 by Going through

[rayman26 4]

1 minute ago, Going through said:

I am very much curious the question(s) you posed to your attorney to garner this type of response.  Off the cuff, the response reads as though you were asking if you can "get away with" having a prenup without your wife seeking legal counsel before signing it/hoped to encourage your wife to sign it without seeking legal counsel, for fear that any attorney may question it's fairness to her?

Absolutely not, I very much want her to get her own advice and will encourage her to do so in whatever form she feels is necessary.   I'm interested in it holding up if it ever had to, and so would be foolish for me to attempt to interrupt that process.  

[rayman26 4]

11 minutes ago, Ontarkie said:

Except you had a USC spouse with a lawyer for a father. All the legal advice she needed between him and her own attorney. 

 

Try a foreign spouse who is being told you can't come to the US with our child unless you do this. And he is pretty much saying that. Go read his post. He wants to bring the child here away from her and find another way to bring her here. So it's sign or lose your child.

 

You can bet your last dollar her lawyer will use all this against the prenupt and if he is in California,  from what I've seen on  VJ the immigrant will get what they want in court. 

 

This is what we are trying to explain. 

If he wants a prenup it needs to be iron clad here, there and in both languages and with multiple attorneys in both countries. For it  to have any chance. 

 

This was also the concern I had, you can tell he is addressing my concern by focusing on the encforcebility.  I truly don't want to be in a position where this is ever necessary, but it is prudent.  His response seems to be "calm down, it'll be fine as long as she get's her own counsel.  I am actually still not convinced of this, and that is partially why I've made the post in the first place to see what other real world stories people may have, as I may have to challenge my own attorney. 

[Going through 5,668]

1 minute ago, rayman26 said:

Absolutely not, I very much want her to get her own advice and will encourage her to do so in whatever form she feels is necessary.   I'm interested in it holding up if it ever had to, and so would be foolish for me to attempt to interrupt that process.  

A prenup is much better, imo, than a trust.  It would hold up much better than a trust, as well.

[rayman26 4]

13 minutes ago, Ontarkie said:

Except you had a USC spouse with a lawyer for a father. All the legal advice she needed between him and her own attorney. 

 

Try a foreign spouse who is being told you can't come to the US with our child unless you do this. And he is pretty much saying that. Go read his post. He wants to bring the child here away from her and find another way to bring her here. So it's sign or lose your child.

 

You can bet your last dollar her lawyer will use all this against the prenupt and if he is in California,  from what I've seen on  VJ the immigrant will get what they want in court. 

 

This is what we are trying to explain. 

If he wants a prenup it needs to be iron clad here, there and in both languages and with multiple attorneys in both countries. For it  to have any chance. 

 

Just to add, I definitely don't want to take her away from the baby at any point.  My assumption is that if we were to become divorced, she would continue to reside in the USA in housing that I pay for.  I've let my attorney know to be favorable in terms of support - not because I can't get away with less but because I would want to do what's right and make them both comfortable.  

[Going through 5,668]

Does she know yet that you are proposing a prenuptial agreement/trust?  You'd said earlier that a lot depended on her reaction..

[rayman26 4]

Just now, Going through said:

Does she know yet that you are proposing a prenuptial agreement/trust?  You'd said earlier that a lot depended on her reaction..

I am going to bring it up after the baby is born because I want that to be unspoiled for either of us.  I have been letting her know subtly that certain things are only for my side of the family (our business), etc and she doesn't seem to be too worried about it. 

We are very happy together and the prenup has little to do with her being from another country.  However, it does raise a number of issues, including enforcement, etc. 

 

 

[Ontarkie 13,918]

1 hour ago, rayman26 said:

Just to add, I definitely don't want to take her away from the baby at any point.  My assumption is that if we were to become divorced, she would continue to reside in the USA in housing that I pay for.  I've let my attorney know to be favorable in terms of support - not because I can't get away with less but because I would want to do what's right and make them both comfortable.  

I understand, just wanted to  point out if I can come up with that out of your post a darn good lawyer can too. The important part is to make sure she has plenty of representation. You also cannot have any connection to her lawyer.

 

I'm all for protecting your assets. I had more to lose than my USC husband and 4 kids from a previous marriage to protect. You just need to do it right and if a prenup is to be enforced you cannot skip out on making sure she has proper representation. 

[Going through 5,668]

So what's your plan B if she refuses to sign a prenup?

 

[Boris Farage 353]

2 hours ago, Ontarkie said:

Except you had a USC spouse with a lawyer for a father. All the legal advice she needed between him and her own attorney. 

 

Try a foreign spouse who is being told you can't come to the US with our child unless you do this. And he is pretty much saying that. Go read his post. He wants to bring the child here away from her and find another way to bring her here. So it's sign or lose your child.

 

You can bet your last dollar her lawyer will use all this against the prenupt and if he is in California,  from what I've seen on  VJ the immigrant will get what they want in court. 

 

This is what we are trying to explain. 

If he wants a prenup it needs to be iron clad here, there and in both languages and with multiple attorneys in both countries. For it  to have any chance. 

 

My apologies if I touched a nerve -- I truly feel for the poster, having been taken to the cleaners myself. I agree that any prenup must be ironclad both here and there to protect himself. Perhaps I wasn't clear that it is important for his fiancee to also have competent representation and in a language that she understands. This is crucial. Your advice is spot on.

 

I only wish it were true that in California the immigrant always gets what he or she wants in court, certainly wasn't the case for me. 

[Boiler 43,451]

It does seem that marriage is becoming the preserve of the very rich, or poor or those seeking Immigration benefits.

 

Well from a male perspective.

 

 

[rayman26 4]

1 hour ago, Going through said:

So what's your plan B if she refuses to sign a prenup?

 

It's a great question.   That is why I was seeing what anyone else had to say.  At the end of the day we all want to be together, and I can't see leaving a child behind over money.  So, to the extent that I'm exposed it will be worth it in the end (hopefully).   I don't really have a plan B.  Probably just hope for the best.  

It does seem there should be some opportunity to find a middle ground.  The absense of one I think may lead to people bailing out early.   I won't be doing that however.

 

Edited June 21, 2019 by rayman26