The Premarital Agreement and Common Questions & Answers
By: Gary Bala, USA Immigration Attorney
What is a Premarital Agreement?
A Premarital Agreement, also known as a Prenuptial or Antenuptial Agreement, is a simply contract between two persons in advance of marriage which defines their rights and benefits. Typically, the agreement divides property and income between the partners in case of separation or divorce, usually in place of alimony or spousal support. Without such an agreement, current state law requirements will determine how that property is divided and how much spousal support is justifed, if any. An agreement simply allows the couple to follow their own rules.
Are Premarital Agreements Valid?
In general, yes. However, the validity and enforceability of Premarital Agreements will governed by state law, and thus will vary from state to state. But the vast majority of states either by statute or case law favor these agreements as a means of distributing property of spouses who separate or divorce. This progressive view continues to grow.
For example, at least eighteen (18) states have expressly adopted Premarital Agreement statutes following the 1983 lead of the National Conference of Commissioners on Uniform State Laws which endorsed model legislation called the “Uniform Premarital Agreement Act (UPAA)“:
Arizona, Arkansas, California, Hawaii, Illinois, Iowa, Maine, North Dakota, Rhode Island, Kansas, Montana, Nevada, New Jersey, North Carolina, Oregon, South Dakota, Texas, Virginia
Even in states which have not yet expressly adopted a Premarital Agreement statute, the Courts generally enforce such an agreement under their common law. For example, the Washington Supreme Court enforced a Premarital Agreement in Matter of Estate of Crawford, 107 Wash. 2d 493, 498 (1986), favorably commenting on UPAA.
In the absence of a Premarital Agreement, courts will usually require the partner in the marriage with the greater income and assets (typically the husband) to pay the other spouse one or both of two forms of payment: 1. Alimony or Spousal Support, and 2. Marital Property Distribution. Courts will apply state law rules to divide property between contesting spouses in case of separation or divorce.
The great majority of states follow the “equitable distribution” model of property settlement which awards property based on equitable principles and factors such as length of marriage, spouse’s lifestyle, economic needs and requirements and the contributions each spouse brought into the marriage. All property is treated as jointly held by the spouses before distribution.
In a minority of states such as Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin — known as “community property” states — the courts treat each spouse’s property after and during the marriage, including property appreciation, as joint “community property”, subject to being divided equally. (However, property in the name of each spouse before the marriage stays with that spouse after divorce, provided that it was not “co-mingled” with the other spouse’s ownership or control during marriage.)
Of course, a properly drafted Premarital Agreement can effectively change this distribution scheme.
What is the Legal Test for a Premarital Agreement?
There is no guarantee that a Premarital Agreement will not be challenged. In fact, you should assume that your Premarital Agreement will in fact be challenged and act accordingly. States employ legal tests to determine if a Premarital Agreement is valid. If the Court is satisfied that will be constrained to enforce the agreement. The accepted legal tests are:
WRITING REQUIREMENT: Is the Agreement in writing? A written documents is viewed as the best evidence of the intention of the parties.
FULL DISCLOSURE: Were all assets and property of each spouse disclosed to the other in advance of marriage? Courts will not enforce an agreement if one or both parties conceal the identity of assets and property. Some U.S. gentlemen attempt to bypass this requirement with a Waiver of Full Disclosure document, but the validity is questionable and not suggested. In fact, it is recommended that a detailed schedule of all assets and property be attached to the Premarital Agreement, together with a copy of the last Federal Income Tax returns of each spouse.
FULL UNDERSTANDING: Did the parties understand the agreement beforehand? In the case of agreements with Latin women, the writing must be translated into Spanish verbatim and include a certification from an official-approved translator. It is also strongly recommended that a Colombian or Spanish-speaking Attorney be appointed to represent the prospective immigrant spouse separately so the agreement is fully explained. [Some states such as California REQUIRE that the immigrant spouse be represented by “independent counsel” at the time of signing before any provision in a premarital agreement affecting for example spousal support are deemed “enforceable”. See California Family Code, Section 1612 (c)].
VOLUNTARY AGREEMENT: Did the parties voluntarily agree to the contract without fraud, duress or coercion? For example, the agreement should be signed sufficiently well in advance of the marriage which helps avoids the appearance of undue pressure. Further, hiring an independent lawyer for the immigrant spouse helps to lessen any claim of fraud or duress. (Some states make it a requirement that independent counsel represent and advise the immigrant spouse.) Typical claims by disgruntled immigrant spouses are: “He said he would call off the wedding if I didn’t sign, or he told me he would tear it up after our first anniversary, or he told me that it was a required part of the U.S. marriage or immigration process.”
FAIR AND REASONABLE TERMS: Are the terms and provisions of the agreement fair and reasonable to both sides? Courts do not favor one-sided agreements where one party has an unequal bargaining position, or where one partner is left destitute. This does not mean that a husband, for example, is not able to negotiate a cap on his financial exposure. Rather, he can in fact do so provided that it is not unreasonable, a legal concept called “unconscionability”. See Uniform Premarital Agreement Act, Section 6(a). What exactly is “fair and reasonable” will vary in each case, and calls for consideration of many factors in consultation with your lawyer.
How much can she get from me if I do not have a Premarital Agreement?
This is a typical question asked by many U.S. gentlemen. The precise answer will vary under the divorce and alimony law of each state. Some states are “community property” states which divide joint martial property equally 50/50 in case of divorce, unless exceptions apply. Other states are “equitable distribution” states which divide joint marital property under their state equity rules, not necessarily (but sometimes) equally depending on case circumstances.
In general, states apply a “sliding scale” analysis — the longer a couple has been married and thus the longer a wife might have relied upon joint income, the more the wife can successfully claim in case of divorce. There is no universal benchmark, but many divorce lawyers say that a gentleman who has been married three (30 to five (5) years might have more alimony or spousal support exposure than one who has been married only one (1) year or less. Many divorce lawyers suggest that a divorcing gentleman might be required to pay 20% to 40% of his income for a third of the term of his marriage, less mitigating factors or set-offs.
Won’t She Get Angry and Call Off the Marriage if I
Raise the Topic of a Premarital Agreement with Her?
No, not in our experience for most people. First of all and needless to say, the topic of a Premarital Agreement must be raised with the UTMOST DELICACY, and only AFTER a couple has developed an unquestionable BOND OF TRUST. Most easily and comfortably, it can be discussed in the context of other significant legal matters such as the immigration and visa process and the Affidavit of Support. Besides, if the topic of Premarital Agreements is so distasteful and destructive to a potential spouse that she would “call off the wedding”, then the gentlemen should probably re-consider the engagement himself.
What about Premarital Agreements and Latin Women?
The Latin culture is much less familiar with Premarital Agreements than ours. Latin women view marriage as a life-long covenant, not a temporary living arrangement. However, once the concept and rationale of a Premarital Agreement is explained fully, especially the strengthening of the relationship by finalizing financial issues before the marriage, our experience is that a Latin woman will generally have no objection.
In this regard, many Latin women from higher socio-economic levels are quite comfortable with the Spanish version of Premarital Agreements known as “capitulaciones prematrimoniales”, which establish the conditions of married life before marriage.
What about Premarital Agreements and Colombian Law?
In the usual case, Colombian law will not be relevant, and thus there would be no need to conform the agreement to the requirements of Colombian rules. This is because the U.S. Citizen Sponsor will almost always choose to reside with the immigrant spouse in his home state in the United States for the duration of the marriage.
Therefore, under U.S. jurisdiction rules, the law of the state of the husband’s residence will apply, and not Colombian law. Typically, the Premarital Agreement also requires that the law of the husband’s state of residence apply.
The only exceptions to this rule might be where the couple chooses to reside in Colombia for the marriage, or where the husband wants to assert a claim to significant property the spouse may have Colombia. In those cases, a Colombian Premarital Agreement might be warranted.
Can I Get Away with Paying Her “Nothing” in a Premarital Agreement?
No, you can’t. Some gentlemen wish to sign a Premarital Agreement whereby the immigrant spouse receives an airline ticket home and perhaps an English lesson — all in exchange for keeping all of his money safely tucked away in their chest of drawers in case of a terminated marriage. This won’t work. This type of “Premarital Agreement” is the same as not having any, since it will be thrown out of court.
In a similar vein, some gentlemen want to offer their spouse 50% of future property put into their joint names after the marriage, or 50% of the future appreciation in value of stocks and bonds or other assets. This too amounts to no offer at all, as the courts view this type of offer as “illusory” — no property might ever be put into joint names after the marriage, and there is no certainty that any appreciation in value of marital property would ever take place.
A Premarital Agreement can be thought of as a “quid pro quo” (something for something), and further as a “sliding scale“. “Quid pro quo” here means that the gentleman must be willing to pay something to his spouse which the Court will say is “fair” and which constitutes a minimum “floor” — in exchange for the privilege of the gentleman protecting the remainder of his assets and income. “Sliding scale” simply means that the more the gentleman is willing to pay, the more likely it is that the Premarital Agreement will survive a court challenge.
Are There Other Ways Than a Premarital
Agreement to Protect Your Assets and Income?
Yes. The problem however is that many of these ways are either too expensive or require that you lose ownership and control of your property and income. For example, one way is to create an IRREVOKABLE TRUST, typically a living trust. All your assets and income are moved out of your estate into the living trust, which now owns and manages them forever. Thus, you lose ownership and control. Another way is OFFSHORE TRUST AND FOUNDATIONS. Same problem here. Not only do you lose ownership and control to a trust owner, but this owner operates oversees and therefore is not subject to US laws, some of which regulate owners and trustees in your best interest.
Creating OTHER LEGAL ENTITIES and transfering your assets and income to them is another way. Examples are: S-Corporation, C- Corporations, Limited Liability Corporations or Charters. But management, accounting and administration of these entities can be expensive and complex. An pivotal question to ask in forming these other entities is: how the entity is structured and who is the owner or shareholder of the entity? If a corporation is set up for the sole purpose of evading marital libilities, courts can “pierce the corporate veil”, and collect the assets as part of a marital judgment. Also, if the gentleman himself formed the corporate entity and holds all shares, then obviously his shares are simply part of his collectible assets, which can be made part of a marital judgment.
Can A Premarital Agreement Protect my Pension and Retirement Plans,
Including 401(k) Plans, as well as Medical Disability and Related Payments?
Aside from a home or condominimum, the largest asset which most gentlemen possess is a pension or retirement plan, such as 401(k) plan or other qualified plan. Most gentlemen are concerned about losing money in their pension plan in case of divorce. The general rule is that the pension plan or 401(k) plan rests in the name of the husband, and brought into the marriage and thus would stay with the husband in case of divorce. However, appreciation in value in the retirement plan, in the absence of a Premarital Agreement, including a 401(k), is part of the “marital estate” subject to property division in case of divorce.
A Premarital Agreement, however, can change this rule, subject to the limits of ERISA (Employment Retirement Income Security Act) by including provisions in it which say that the wife will agree to sign all future waivers and releases at a later date under the retirement plan provisions to allow the husband to keep his retirement plan in full, including appreciation in value.
One interesting area in regards to divorce and Premarital Agreements is how private insurance medical disabilities, military service-connected medical disbilities, workers compensation medical payments, and lawsuit personal injury payments operate. Many states, such as Minnesota, exempt disability pay plans from “alimony” or “maintenance” judgments.
This does NOT mean that a court judgment cannot be entered against a gentleman for alimony or maintenance since he may be able to pay it from other sources, present or future. Also, this does NOT mean that a gentlemen is “off the hook” by not having to pay her anything. This gentleman’s Premarital Agreement is still tested for validity by examining whether whatever he offers his spouse is fair and reasonable to her. Furthermore, caution should also be used to determine if this gentleman’s disability payments or personal injury award payment is truly for medical reasons, and not for psychological harm or stress, or for legal discrimination or other legal violation. If so, there is NO exemption from alimony judgments.
What is the Relationship Between the Premarital Agreement (State Law)
and the Form I-864 Affidavit of Support (Immigration Federal Law)?
An interesting question has arisen since the development in immigration law and regulation of Form I-864 Affidavit of Support: What relationship does it have to the state law Premarital Agreement? The answer is now clear. Case law has firmly established that the Affidavit of Support is absolutely enforceable under federal law as an independent financial obligation under immigration, apart from the state law Premarital Agreement.
See: Stump v. Stump, No. 1:04-CV-253-TS (U.S. Dist. Ct. N.D. Indiana, Oct. 25, 2005)(Court rules that the U.S. Citizen Sponsor is directly liable to the Beneficiary to maintain her at 125% of the federal income poverty guidelines, less any applicable set-off or mitigation.); Wenfang Lui v. Mund, 686 F. 3d 418 (7th Cir. 2012) (Court rules that U.S. Citizen Sponsor must provide support obligations under Affidavit without mitigation, even if immigrant spouse is unemployed); Toure-Davis v. Davis, No. 8:2013-CV-00916 (U.S. Dist. Ct., Dt. Maryland, 2014)(Court rules that the I-864 Affidavit is enforceable even if couple signed a state law prenuptial agreement waiving right to alimony); Erler v. Erler, No. 14-15362 (9th Cir. 2016), 2016 U.S. App. LEXIS 10361 (Court rules that the U.S. Citizen Sponsor is directly liable for support obligations under the I-864 Affidavit).
Certain rules appear to be well-settled, and not subject to dispute:
1. The I-864 Affidavit operates as a separate contract between the Sponsor and the Federal Government — imposing a financial obligation on the Sponsor to reimburse the Federal Government for public benefits paid to the immigrant spouse, in case she becomes a “public charge”, and enforceable by a judgment lien or wage garnishment;
2. The Sponsor’s Affidavit obligations do not terminate in case of separation or divorce, and even constitute a direct obligation to the immigrant spouse;
3. The financial obligations imposed under the federal immigration Affidavit and the those imposed under the state law Premarital Agreement co-exist because each arises from different jurisdictional laws. Thus, the Premarital Agreement cannot substitute for or eliminate the Affidavit obligations.
On a more comforting level, it seems equally clear however that a state law Premarital Agreement, under appropriate circumstances, can probably render the federal I-864 Affidavit obligations for minimum financial support both moot and superfluous. If, for example, the Premarital Agreement allows for sufficient support for the immigrant spouse and is otherwise “fair and reasonable”, the federal Affidavit has no practical effect since the minimum needs of the immigrant spouse have been satisfied and no claim for public benefits nor reimbursement would ever be made. This is further buttressed by the Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Act) of 1996 which effectively bars new immigrants in any case from claiming federal welfare or other federal means-tested benefits for a period of five (5) years of the immigrants’ entry.
On a more cautionary note, apart from the reimbursement issue, it should be pointed out that a state court judge ruling on the enforceablity of a contested state law Premarital Agreement can and would probably look to the minimum required income amounts of the I-864 to determine the level of support deemed “fair and reasonable” for the immigrant to approximate her lifestyle during the marriage.
Thus, for example, a sum of one-half of the sponsor’s required amount of support for the household size in question under the I-864 would not be an unreasonable general starting point (but not ending point) for analysis to determine the appropriate amount for support for the immigrant in at least some cases after marriage dissolution. See: Form I-864P, HHS Poverty Guidelines for Affidavit of Support.
Thus, with reasoned analysis, a properly drafted state law Premarital Agreement should not logically conflict with the federal Affidavit obligations.
How Can a Premarital Agreement be Transformed
from a “Divorce Agreement” to a “Marriage Agreement”
Many people think that a Premarital Agreement is synonymous with “lack of trust” and implies a potential future divorce, and therefore destroys a relationship. Our Office does not agree but believes that a Premarital Agreement can be drafted so as not be appear to be a “divorce agreement” but as a “marriage agreement”. By doing so, the process of signing the agreement is made smoother, and effectively transforms it into a tool to re-inforce trust in the marriage.
Some of the provisions Our Office has included in Premarital Agreements to accomplish are: a provision that the couple love and commit to each other; that both sides accept the values of marriage such as a shared mutual commitment of time, effort and faithfulness; and that both sides will seek professional counseling before any separation or divorce occurs.
While courts historically have not viewed such non-economic provisions of Premarital Agreements as enforceable, Our Office believes that such “feel good” language greatly encourages the couple, especially the future wife, to sign the agreement, and strengthens bonds of mutual understanding and trust in the relationship.
A Premarital Agreement is a highly personal and potentially complex matter. It requires careful planning, and involves time and costs. An effective Premarital Agreement, however, can offer at least some prospect of valuable asset and income protection. And at its best, a Premarital Agreement can be transformed into a tool to help strengthen trust in a marriage.