What makes a pre-nuptial agreement enforceable

[Russ&Caro 1,549]

My wife has a friend who married a USC about 4 years ago. The guy had been married a couple of times before and had her sign a pre-nuptial agreement - also sometimes referred to as a marriage agreement. My wife's friend was still pretty young (early 20's) when she married and knew almost no english. Her fiancee/husband was fluent in spanish. She signed the agreement in Colombia, prior to arriving in the US on a K1 visa. It was written in english. She did not have an attorney that advised her on any of this. I haven't heard if the husband recommended that she get an attorney to help her understand the document, prior to obtaining her signature on the document.

They've lived in California for the past 4 years.

The husband seems rather heavy handed in defining the terms of how they live. For example, he hasn't allowed her to return to Colombia to visit her mother. He pays her some small amount to clean their house, which seems a bit strange to me. She is taking the initiative to improve her situation by attending nursing school.

One of the reasons I bring up the pre-nuptial agreement is because she feels a bit depressed about her situation and feels there is nothing she can do. I'm wondering if she should visit an attorney with the pre-nuptial agreement in hand and discuss if she has any options. If the agreement were questionable from an enforcement standpoint, perhaps it would allow her to be a little more assertive in her marriage and she could be more happy.

Any legal opinions on this matter?

p.s. This isn't one of those situations where I'm disguising my own relationship with a story about a "friend". I had an attorney draft a boilerplate marriage agreement for me, but declined to use it, in the end.

[Transborderwife 4,666]

It depends on the state to be honest

[UnaMexicana 153]

You dont mention any kids. Or any disabilities on her part. She can always divorce if she is not happy, prenup or not.

[Cathi 5,784]

this is not a divorce or a legal site. Do you have a question regarding immigration?

[Boiler 46,121]

Only relevant if she is seeking a divorce.

How is her husband stopping her visiting her mother?

[Russ&Caro 1,549]

this is not a divorce or a legal site. Do you have a question regarding immigration?

I posted this in the New Life in America forum where non-immigration topics are frequently discussed.

[Caryh 5,206]

A prenuptial agreement in a second language where a lawyer was not consulted is generally easy to get around. But that takes paying a lawyer and at 4 years of marriage, the odds of her getting much in a divorce isn't that good.

Lets look at some of the things she's unhappy with with alternative possible view points

he hasn't allowed her to return to Colombia to visit her mother. - They don't have the money for a trip at this time.

He pays her some small amount to clean their house, which seems a bit strange to me. - she cleans the house while he works. This money is her person spending money.

She is taking the initiative to improve her situation by attending nursing school. - He is paying her education expenses, so they can have a better financial situation in the future.

When you look at this from another perspective, it doesn't sound that bad to me. Just shows how your phrase things can have a huge effect on the perception of a situation, in this case from quite a negative view, to a very typical that's how life works view. It would not be surprising to me with all the costs involved in immigration and sending someone to school while they're not working, money is going to be tight. That's real life in America, and not the Hollywood inspired view that we all have money falling out of our pockets all day because we have more money than we can keep track of. Possibly she needs to take a more active part in seeing how much money comes in and how much goes out. It could be a lack of understanding has lead her to think things that are not really as she perceives them. Could be the guy is being jerk and is over controlling too. But just because someone can't have everything they want, doesn't mean someone else is over controlling.

[Boiler 46,121]

Presumably she wanted to come to the US to live the American Dream.

If he is short of money why the pre nup? Can not take what is not there.

[Caryh 5,206]

Presumably she wanted to come to the US to live the American Dream.

If he is short of money why the pre nup? Can not take what is not there.

To protect retirement accounts or property, protection from alimony, protection from the I-864, etc... Not being able to afford more at the current time, does not mean someone doesn't have assets they may have spent a life time building up and would have no chance to recover from.

[elmcitymaven 9,712]

Couple of things -- what is the governing law of the agreement? Where was the husband resident at the time he entered into the agreement? I note they are resident in California -- is it likely they will remain resident there for the time being, or at least until they divorce (assuming they do)? Are there any terms of the agreement that govern support during the existence of the marriage?

Anyway (and IANYL -- while I may be one, I have not yet passed the Bar in California or any US state, so what follows is only given as friendly information which cannot be relied on in a court of law), assuming that California law is governing, and that the circumstances surrounding the formation of the agreement are as represented here, it is possible that the entire agreement is unenforceable. Pursuant to Cal. Fam. Code § 1615), a prenuptial agreement will not be enforceable if one of the parties did not execute the agreement voluntarily, or the agreement was unconscionable. "Voluntary" here means that the person entering into the agreement knew what he or she was signing. Pursuant to Cal. Fam. Code § 1615(c ) states:

"it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.

(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant."

If what you say is true and she did not know what she was signing due to language issues, she had no opportunity to seek independent legal advice, and was not permitted to have independent legal advice, the agreement is potentially unenforceable. Your friend really needs to consult a family law specialist for further information.

[Russ&Caro 1,549]

Thanks for the analysis, Killary.

To answer others, the USC husband does have plenty of assets that he wants protected. He is willing to pay for some things like education for her, but not others like a trip to her home country. I don't want to portray this as a bad marriage because I only know some things and all of it, second hand. Personally, I would like to see the couple succeed in marriage, and I believe that's her goal too. She is not assertive and some of that is from coming to a new country (ha! an immigration issue). Some of that is learning a new language. And I'd say some of it is from the financial imbalance btwn the two of them. One of the reasons that I believe financial co-mingling is good and is proper for USCIS to use as a factor to judge a bonafide marriage, is that it's a good way to build a solid foundation within a marriage. In this case, it's not happening so much. The husband still has a firm hold on the household budget. My question goes to how she might be able to gain confidence about her own future financial situation. Armed with the knowledge that the pre-nup might not be ironclad, she might feel more confident as she addresses financial issues with her husband.

[andy78 178]

The husband seems rather heavy handed in defining the terms of how they live. For example, he hasn't allowed her to return to Colombia to visit her mother.

It seems that this means he doesn't want her to travel on his expense, which has nothing to do with allowing or not allowing her to travel.

The husband still has a firm hold on the household budget. My question goes to how she might be able to gain confidence about her own future financial situation. Armed with the knowledge that the pre-nup might not be ironclad, she might feel more confident as she addresses financial issues with her husband.

She can gain confidence about her own future by being financially independent and self-sufficient like her husband. IF her husband is paying for her education, then he is helping her achieve that goal. She should try her best to find a job while she is in school, even a part-time one. If her husband is doing anything to limit her ability to become more self-reliant instead of depending on him, then she is obviously with the wrong guy.

Has she discussed the situation with her husband instead of talking to strangers? This might sound silly and too obvious, but it's always a good idea to sit down with your partner, express your concerns and hopes, and plan things together, before talking to strangers.

[Boiler 46,121]

Has she thought about paying her own way?

[Russ&Caro 1,549]

It seems that this means he doesn't want her to travel on his expense, which has nothing to do with allowing or not allowing her to travel.

Has she thought about paying her own way?

Different people have different ideas about what a household budget is and how decisions are arrived at on how to spend money on various expenditures. My wife and I share all decision making associated with every cent that comes into our relationship, regardless of who actually earned it. I respect both of your opinions about each partner having their own money and control only over their own money. Hopefully you also respect other ways of handling finances within a relationship.

Mods, I got the advice I was looking for. It's probably best to close this thread before the thread strays too far away.

[Transborderwife 4,666]

Hit the report button in case they don't see it