A prenuptial agreement must be executed before the prospective foreign spouse’s departure from their country and arrival in the United States in order to be view as voluntarily executed. Free of duress or undue influence of any kind.
Here’s why: in most cases a prospective foreign spouse will arrive in the United States on a K-1 fiance(e) visa. Very convincing arguments can be presented to a court at the time of divorce that the prospective spouse’s signing of a prenuptial agreement upon arrival in the United States was not truly voluntary because (i) the prospective spouse has moved half way across the world and given up everything in her or his life to enter in to marriage and live in a country and culture that is unfamiliar to her/him. That the prospective spouse would face embarrassment from family and friends should she or he return home soon after departure. That the prospective spouse would return home to nothing having previously given up her/his job, home, possessions, etc. (ii) Failure to sign the prenuptial agreement would result in not marrying the U.S. citizen and under the terms of the K-1 fiance(e) visa she or he would face immediate deportation after 90 days.
Should the prospective spouse already be in the United States on a different type of visa, we will evaluate the circumstances and advise accordingly.
Should your prospective spouse already be in the United States on a K-1 fiance(e) visa we advise that you get married and execute a postnuptial agreement.
If you married in your spouses country and then brought her to the United States on a CR-1, IR-1, or K-3 visa we will execute a postnuptial agreement for you.
Additional Timing Considerations
A prospective spouse must be given a minimal amount of time to review the agreement and have the opportunity to seek legal representation. The minimum amount of time between being presented with the agreement and signing the agreement can not be less than 7 days.
A prospective spouse can not be asked to sign a prenuptial agreement on the eve of the wedding. If wedding invitations have already been sent out this could be seen as a form of duress. Some arguments of this type are convincing in a divorce court and some are not, but a good rule of thumb is to execute a prenuptial agreement well in advance.