as opposed to the enforceability of the agreement, is often the key issue for CIS when reviewing a marriage-based green card case. Nothing in the statute requires a couple to volunteer the existence of a prenuptial agreement but if questioned about it by CIS officer at a green card interview, its existence must be disclosed or else the immigrant could face a misrepresentation bar to obtaining a green card and both the petitioner and immigrant could face civil and criminal charges and financial penalties for marriage fraud.
Why would a couple want to enter into a prenuptial agreement?
- Many modern couples do so to protect assets that existed before their marriage, especially if this is a second or third marriage and they want to be able to leave those assets to a son or daughter.
- Many couples also use prenuptial agreements so both parties feel that the marriage is being entered into for love and not financial gain and all the cards are on the table from the beginning.
However, the very existence of a marital agreement may back-fire on the marriage-based immigration case.
In every marriage-based immigration case, CIS is concerned with marriage fraud and will want proof that the couple married for love, not to evade immigration law. Very much trapped in the mindset of the 1950s model of what a marriage looks like on paper, CIS officers routinely ask for proof of commingled assets including jointly held and actively used bank accounts, CDs, and stocks, housing held in joint tenancy, joint car loans and mortgages, and joint health, life, and car insurance. The modern couple that keeps their financial lives primarily separate due to retirement age, family trusts, or other needs, have a much tougher case to make.
Marital and prenuptial agreements may also muck up the waters with potentially compromising provisions to the immigrant that could appear as if there is a financial arrangement in exchange for the U.S. citizen’s compliance with the immigration process (i.e., waiver of alimony or child support in exchange for cooperation in signing the Affidavit of Support or cooperating in the joint filing to remove the condition on a conditional green card or non-interference or contact with CIS if the immigrant wants to remove the condition on their own or needs copies of financial documentation in the future for purposes of documenting the bona fides of the relationship).
When the relationship starts to deteriorate, marital and prenuptial agreements have been used by the petitioning U.S. citizen spouses as proof of the immigrant’s intent to marry only for a green card (permanent residency status) after the immigrant has signed the agreement in an effort by the US citizen spouse to maintain control throughout the immigration process and especially, the finances. For this reason and due to the fact that these agreements are naturally suspect by immigration, they must be carefully drafted. Both parties should always consult a family lawyer and the immigrant should consult an immigration lawyer in addition before signing any kind of prenuptial agreement.
Get Your Free Guide! Immigration Attorneys & You: How to Choose Between the Right One and Those You Should Run From
by Attorney Heather L. Poole
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com
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A prenuptial agreement may be the deciding factor for a spouse who is hesitant about being involved with the immigration process in deciding to go through with the marriage. There’s no guarantee that a prenuptial agreement will actually hold up later down the line in state family court as this varies with each case depending on the facts involved, given the inherently often coercive nature of the terms or the timing. For immigration purposes, though, the