The Interplay Between Divorce and Immigration: Part 2
In last month’s article, we spoke about the intersection between matrimonial law and immigration in broad brushstroke terms. In this article, we parse out specific red flags and nuances to look out for in cases where immigration is a factor.
Prenuptial Agreements:
Many citizens who marry immigrants choose to have a Prenuptial Agreement in place prior to entering the marriage.
Prenuptial Agreements are a sound measure for their protection and I highly recommend them. But, if you are doing a Prenuptial Agreement, you need to do it the right way. Make sure you are not just pushing meaningless ineffective paper around that isn’t worth the paper it’s written on.
Many marriages involving immigrants happen in a speed of lightning way to offer the immigrant protection. The problem is that Prenuptial Agreements should not be done in such a mirrored manner. Chik chak hurried for a Prenup is asking for problems if the Prenup is later questioned and challenged.
It is especially important that the Prenup be objectively fair and one that a reasonable person of sound mind and not at the heels of utter desperation would sign.
It is also critical that both parties be represented by attorneys. I am often the lead drafting attorney. My clients time and again ask me if their soon to be spouse really – truly – absolutely needs their own attorney? Like they are willing me to respond something other than an unequivocal, affirmative, and trumpeting YES!
These Prenups also tend to demarcate all property as exclusive separate property of the parties as dictated by title of ownership.
While many Prenups do this, the Prenups involving immigrants do so at a higher average than others. Exclusive separate property Prenups, such as these, are an opt out of the New York Domestic Relations Law that dictates that acquisitions after the marriage date are marital, and to be split equitably, regardless of how title is held.
See, https://www.nysenate.gov/legislation/laws/DOM; https://www.nysenate.gov/legislation/laws/DOM/236.
As we noted in “The Intersection between Divorce & Immigration: Part 1,” joint and commingled finances is one of the cogent persuasive points of evidence the immigration authorities look for to satisfy them that a marriage involving an immigrant is a bona fide marriage.
So, we need to satisfy the seeming contradiction of a Prenup that designates all property as separate and the immigration authority’s criteria of evidence demonstrating joint ownership and commingled finances.
We do this by carving out an allowance in the Prenup for a joint household account held in joint names. There is no minimum the parties must maintain in this account. The question becomes how the account funds would be split in the event of a divorce. Cash accounts are most typically split equally in divorce, but for these couples, we often specify in the Prenup that the funds will be split pro rata to contribution so that the spouse who funded it more heavily does not lose out.
International Travel with Children:
What comes to mind most commonly is a fear that the immigrant parent will abscond with the children back to their native country and create hardship and aggravation for the American parent to get the children back. Depending on the immigrant parent’s country of origin and such country’s recognition of international law and conventions, this can be a real concern. We often work with international experts for these cases. You would also want to look at the Hague Convention and signatory countries to better grasp your situation. Non-signatory countries should justifiably evoke a healthy dose of trepidation and concomitant precautionary measures to ensure the children remain safely on American soil. See here to learn more:
https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html
Another aspect though is the perspective of the immigrant parent. They want protection and assurance that the children will be able to travel to their native country to spend time with grandparents and cousins for, say, a summer or long holiday break. The desire for the children to develop a strong relationship with family members abroad and also be immersed in the native culture of the immigrant parent sings loudly. This is often honored by the American parent as they too recognize the enriching benefits this can have on the children. We can address this by specifying in the parties’ divorce agreement the times and parameters for such extended travel and visits the children may have with extended family abroad. So long as the visits are to a country that is a signatory to the Hague Convention, the cost benefit analysis of them weighs in favor of the benefits.
To learn more about these and further nuances of marriages and divorces involving an immigrant spouse and how to handle them, including: a) VAWA (The Violence Against Women Act, 34 U.S.C. § 12471 et seq.) claims and protections where domestic violence is involved (See here: https://www.uscis.gov/humanitarian/abused-spouses-children-and-parents); in addition to those cases where, unfortunately, VAWA is manipulated and domestic violence is falsely claimed to gain an advantage; as well as b) difficulty locating your spouse when it’s time to serve them with the summons for divorce because they conveniently disappeared into the thickets of their ethnic enclave communities, contact The Law & Mediation Offices of Cheryl Stein at https://www.cherylsteinesq.com.
Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com
