Prenuptial Agreements

[Pineau]

I have a lady friend that is engaged to an American. He surprised her yesterday with a 15 page prenuptial agreement. She is sad to say the least but more inportantly she needs to try to understand it. I am doing what I can to explain it to her but I need a little help on some specific questions. So any legal types in our group please give an opinion.

This woman is  eligible for retirement in a few years. she will forfeit that if she marries him and moves away to America. So he has made some provisions for alimony should they divorce. But i am not sure if his offer is really worth anything.
Anyone know what the immigration  laws provide for in the way of alimony?
support amount to WIFE under the Immigration Laws of the United States, whichever is lesser.

I dont want to post much more that could be used to identify her in case her fiance is browsing this forum. So anyone needing more info then PM me and I will give you details privatly.

[Robertt S]

She should get a copy of the pre-nup and take it to a certified translator and have it translated to Chinese, then make an appointment with a Chinese lawyer to have the legal ramifications of the pre-nup explained to her. I would make him pay for the translations and lawyer since apparently his wallet and heart occupy the same space. I can see why he is looking in China, I am pretty sure most western women told him where he could store the pre-nup for safe-keeping.



As far as immigration law, there is no laws concerning divorces, alimony, child support or other family issues.Family issues are handled in state of residence family court system. If their state allows pre-nups then she has to abide by the pre-nup, the only type of support granted is not for the immigrant but a contract that gives the federal government the option to sue him to collect any means tested benefits the immigrant may receive, that contract is the I-864 which by the way is NOT affected by the pre-nup in any way. He will be liable for the I-864 for 10 years, her death, or her abandonment of her permanent residence status. She needs to find a lawyer that is familiar with the family court system in the US and his home state preferable to really understand her situation fully. Even if he lists alimony to her in the pre-nup, she needs to find out if she has any legal remedies if she decides to return to China and he refuses to pay alimony. Here is a link you can read up on pre-nups!  http://www.nolo.com/legal-encyclopedia/prenuptial-agreements-what-law-allows-30283.html

[Willy The Londoner]

My advice would be to give the paperwork back and the ring!

Pre Nups to a Chinese Woman are like saying "Ok I make be making a mistake but you sign this and we go ahead. No signing and we do not.'   

Where the F--- has love gone.

Pre nups are a stigma on the American legal system. I say if you make a mistake you pay.

Get rid of him I say.

Willy

[Rhonald]

Pre nups are a stigma on the American legal system.

From Wikipedia:

United Kingdom
 
Prenuptial agreements have historically not been considered legally valid in England.

Continental Europe
 
Prenuptial agreements have long been recognized as valid in several European countries, such as France, Belgium, the Netherlands, Germany, Switzerland, Sweden, Denmark, Norway and Finland.

United States
 
Historically, judges in the United States accepted the view that prenuptial agreements were corrupting what marriage was supposed to stand for, and often they would not recognize them. Currently they are recognized, although they may not always be enforced.

[Pineau]

Willy, I don't know his motives. He has probably heard the many horror stories about westerners being victimized by Chinese ladies or he is listening too much to his friends. Whatever the case it seems like he is paranoid about it. I read the document and it is thorough, prepared by an attorney and one sided.

My advice to her would be to throw it in his face and walk away but that is not going to work. I think they are both in love but just apprehensive about the future.

So she will probably sign the agreement just to keep him happy but she is fearful of the ramifications to herself if there was a divorce in the future. What is she going to loose? what rights are she signing away? Those are the types of questions she is asking. Not weather or not to sign it but what affect will it have on her future.

I think that is she signs it under duress (ie. he wont complete the marriage if she does not.) then the agreement is not enforceable.

(a) A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:

1. The party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed

[Rhonald]

Prenuptial Agreements Around the World

 
Written on August 25, 2010 by Gabriel Cheong in Prenuptial Agreement


I recently had to research whether China recognizes prenuptial agreements and came upon this site below which has a list of countries and whether or not they recognize prenups.  It is extremely informative and I’ll reprint it here.
 
Just a quick note that it doesn’t matter where you were married or where you have your prenuptial agreement drafted, it matters where you get divorced and whether the divorcing country recognizes your prenuptial agreement.
 
via International Family Law


http://www.massachusetts-prenuptial-agreements.com/prenuptial-agreement/prenuptial-agreements-around-the-world/

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I can see that this will be a hot topic as being Romantic at heart, I am against prenups. But then I also consider myself as small fish with nothing to protect. Since I have no idea about the man in question and what his prenup entails, I would never think to judge. I think Robertt's posting about seeking a Chinese lawyer is the best advice legally she can get - emotional advice on what to do about the relationship could only be given if privy to the history of the couples.

[Jason B]

I can understand both sides of the argument.  But in the initial posting you mentioned her loosing her pension entitlements.  Is there any info in the prenup paperwork for compensation to her if the marriage does fail, not just now but in the future? 

p.s. I am not for pre nups, Xia and I have built everything we have here together so we would both loose everything if things went tits up.

[Pineau]

Jason here is her compensation for giving up her life in China and moving to America (should there be a divorce)

The part I don't like is the constant referral to what ever he is responsible for under immigration law whichever is lesser. ( I think that is probably zero. I cant see the USCIS getting involved in family law. so this is his way out of paying anything at all)

6. ALIMONY:
A. WIFE waives any right to Alimony in favor of the following payment schedule:
i) The WIFE will receive a payment of Twenty‐Thousand Dollars ($20,000) for each year married if either party files for divorce less than 5 years from the date of marriage, or the Husband will be responsible for his support amount to WIFE under the Immigration Laws of the United States, whichever is lesser.
ii) The WIFE will receive a one‐time payment of One Hundred Thousand Dollars ($100,000.00) if either party files divorce 5 years or greater from the date of the marriage or the Husband will be responsible for his support amount to WIFE under the Immigration Laws of the United States, whichever is the lesser.
iii) If either party files divorce after 10 years from the date of the marriage the WIFE will receive a one‐time payment of 10% of the HUSBAND’s assets as determined by the date of filing of the Divorce.
iv) If either party files for divorce after 15 years from the date of the marriage the WIFE will receive a one‐time payment of 15% of the HUSBAND’s assets as determined by the date of filing of the Divorce.
v) If either party files for divorce after 20 years from the date of the marriage the WIFE will receive a one‐time payment of 33.3% of the HUSBAND’s assets as determined by the date of filing of the Divorce.


BTW Jing and I had a prenum agreement but we did not use it during the divorce. We just split everything 50-50.

[Willy The Londoner]

Why would any woman want to marry someone if they are fearful of the fact the man is contemplating the 'what if's' of divorce before they marry!

I say do not marry if you are fearful of the result or cannot commit yourself to one person for life. 

Decide now if you are truly suited not down the line after the first thrills of sex with a new spouse have worn off.

 The only marriage contract should be the vows you take not some lawyer written piece of paper.  You expect the other side to conform to the pre nup agreement when you cannot conform to a marriage contract.

Pre nups are not actually legally binding the the UK anyway.  At least we do have some sense.

Willy

[David E]

Huh After 20 years of marriage, she MAY get 33% of his assets if they divorce..........a lifetimes dedication and she leaves the shmuck with just about everything....he only has to liquidate assets and be asset poor....

Pre-nups in Aus (as the article referred to here says) will be subject "prima facie" to the Australian Family Law Act, which provides for settlement of the joint assets in a more equitable way, recognising that in a "short marriage "...ie one lasting less than 2 years, a woman cannot expect to simply recieve 50% + of her husbands asets. The Family Law Court Judges will mostly over-rule any onerous Pre-nups despite them being signed, legal documents. They will always apply the "reasonableness" test to the agreement...and their decision is FINAL. They would be certain to split the assets more closely to 50:50 after a 20 years marriage...and so they should !!!

However, all bets are off when children come into the marriage, pre-nups than get a back seat to Family Law.

[Pineau]

Willy. I understand what you say and it makes sense to me now. But 13 years ago I signed one with Jing because I was not afraid of me being the cause of divorce but her. She is 20 years younger and I was warned by all my friends  that she will probably leave me in a few years. They were wrong but still, the paranoia got the better of me.  She had ever right to refuse to sign it and I probably would have married her anyway.

But I have never met or spoken with here fiance. I cant speak for him and what his fears are. Maybe his kids put him up to it. I just don't know. But I watched this worried lady on the verge of tears because she so much wants this man for a husband yet she is risking everything she has worked so hard for in China. It was hard to watch.

All opinions aside I would like to know the enforce-ability of these agreements and what advice to give to her so she can make an informed choice about signing it or not or maybe making some modifications that make her feel more secure.

[Robertt S]

The part I don't like is the constant referral to what ever he is responsible for under immigration law whichever is lesser. ( I think that is probably zero. I cant see the USCIS getting involved in family law. so this is his way out of paying anything at all)


That is his catch 22, her support is determined by FAMILY COURT not Immigration Law because Immigration law does NOT and WILL NOT get involved in domestic family issues such as divorce,custody,alimony etc. Immigration law is exactly what the name implies IMMIGRATION. The closest thing Immigration law has pertaining to domestic issues is the IMBRA act that covers domestic violence and human sex trafficking. His lawyer is throwing that phrase in there trying to convince her it is legal or he does not know immigration law either.This is the disclaimer listed on the Department of States website under Laws and Policys;

Divorce Abroad

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DISCLAIMER: THE INFORMATION IN THIS CIRCULAR IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC U.S. STATE OR FOREIGN LAWS SHOULD BE ADDRESSED TO LEGAL COUNSEL IN THAT JURISDICTION.

[Vince G]

Seems to me he is just being careful with being fooled into marriage by a (possible) gold digger. Perhaps the State he lives in is a 50/50 assets law, like California? The words "immigration laws" seems to me showing he will be responsible under the "I-864".

I (we) don't know his situation.   

[Robertt S]

The I 864 is a contract between the petitioner and the federal government, she is not a party to the contract.The 864 contract gives the government the right to sue THE PETITIONER and recoup any means tested benefits the immigrant may collect such as food stamps.She is not eligible to collect any of these benefits until she has had a greencard for 5 years.His pre nup will Not affect the I 864 in any way, he is liable for the duration of the 864 contract.

[Martin]

The I 864 is a contract between the petitioner and the federal government, she is not a party to the contract.The 864 contract gives the government the right to sue THE PETITIONER and recoup any means tested benefits the immigrant may collect such as food stamps.She is not eligible to collect any of these benefits until she has had a greencard for 5 years.His pre nup will Not affect the I 864 in any way, he is liable for the duration of the 864 contract.

Just a thought...could he be thinking that this would be what he means when he says "or the Husband will be responsible for his support amount to WIFE under the Immigration Laws of the United States, whichever is lesser"