In the 1988 hit comedy, Coming to America, Prince Akeem, heir to the throne of Zamunda, flees his home country to escape an arranged marriage. He comes to the United States to find his queen, a woman who will love him in spite of his vast wealth and title. Sure enough, he finds Lisa McDowell, heir to the McDowell’s Restaurant fortune.
Each year, hundreds of thousands of people immigrate to the United States and, like Prince Akeem, many find a spouse while in the country. In fact, family-based sponsorship, especially through marriage to a U.S. citizen or Green Card holder, is the most popular way of obtaining lawful permanent residency in the United States.
Couples about to walk down the aisle are often starry-eyed in love, and divorce is nowhere on their radar. Marriage, however, comes with certain rights and obligations. Additional concerns may arise when a U.S. citizen marries a noncitizen. This article will highlight some points to keep in mind when you or your client is marrying a noncitizen.
A Prenup Even if You’re Not the Heir to the Throne of Zamunda
Immigration issues may cause couples to marry sooner than they otherwise may have. For example, the noncitizen’s visa may be about to expire, and marriage may be the only option for him or her to remain in the United States. The rush to the altar may increase the likelihood of divorce. Even if you are not the heir to the throne of Zamunda or a family business, a prenuptial agreement can be beneficial to clearly outline what would happen in the event of a divorce or death.
It’s a Sham!
In a bona fide marriage, a prenuptial agreement can protect both parties; however, if a marriage was entered into for the sole purpose of obtaining a Green Card (remember Andie McDowell and Gerard Depardieu in Green Card and Sandra Bullock in The Proposal?), a prenuptial agreement may be invalidated.
It’s Not Too Late . . . A Postnup Can Still Help
If the parties are getting married too quickly to negotiate and execute a prenuptial agreement, a postnuptial agreement may be a viable alternative. It is often best to finalize the postnuptial agreement as soon as possible after the wedding date, so that the negotiations do not lag indefinitely.
An Affidavit of Support
As part of the naturalization process, the U.S. sponsoring spouse must file an “Affidavit of Support” form on behalf of the noncitizen spouse to prevent him or her from becoming a public charge. If a noncitizen spouse receives welfare or other public assistance, the U.S. citizen spouse is obligated to repay the government for the benefits received for a period of up to 10 years or until the noncitizen spouse becomes a U.S. citizen, whichever time period is shorter. In a divorce proceeding, the Affidavit of Support may be used as evidence to help bolster a claim for spousal maintenance.
Here’s a Gift and There’s a Tax
The U.S. citizen spouse can receive unlimited tax-free gifts. Tax-free gifts from a U.S. citizen to a noncitizen spouse, however, are limited to $148,000 per year.
As a result, there may be fewer options available in negotiating a prenuptial agreement. For example, in some prenuptial agreements, a couple may agree to fund an account during the marriage for the less wealthy spouse, or the wealthier spouse may agree to give a fixed sum to the less wealthy spouse after a certain number of years of marriage. This can have gift tax consequences if the less wealthy spouse is a noncitizen.
‘Til Death Do Us Part
Death benefits for a noncitizen spouse also raise tax concerns. Presently, a U.S. individual has an exemption of $5,450,000 from federal estate tax. This is the amount that an individual can transfer tax-free at death to a noncitizen spouse.
Unlike transfers to a U.S. citizen spouse which are estate tax-free in any amount, the marital deduction is only available for transfers to a noncitizen spouse (even if he or she is a permanent resident) above the exemption amount if either: (a) the surviving noncitizen spouse becomes a U.S. citizen before the estate tax return is filed and has been a U.S. resident since the deceased spouse’s death, or (b) the property passes to a qualified domestic trust for the surviving spouse’s benefit.
Breaking Up Is Hard To Do
As a practical matter, the citizen spouse may endeavor to use a Green Card as a bargaining chip to gain leverage in a contested divorce case between a U.S. citizen and noncitizen. If there is marital strife and one spouse is a noncitizen, it is important for the noncitizen to consult with an immigration lawyer to avoid being stripped of status. Efforts to use a Green Card as leverage in a divorce proceeding, however, may be poorly received by a court.
Conclusions
Marrying a noncitizen adds an extra layer of complexity. While a prenuptial agreement may be beneficial in many instances, it can be especially important when marrying a noncitizen. Likewise, divorce is complicated and it can be even more complex when it involves immigration issues.
Carole M. Bass is a partner in the trusts and estates and matrimonial and family law practice groups at Moses & Singer LLP.
Rebecca A. Provder is a partner in the matrimonial and family law practice group at Moses & Singer LLP.