I am in the process of getting a visa for my foreign fiancee and I would like to have a prenuptial agreement drafted. I am currently looking for a house to purchase prior to the marriage and I would like that to revert back to me in the event of a divorce. In addition, I would like to protect a sole proprietorship business that I'm starting and also remove any possibility of spousal support.
Is it possible to accomplish this?
1 Answer from Attorneys
It is possible to write a pre nuptial agreement that states these things, however, the real issue is whether it would be enforceable in the event of a dissolution of your marriage? I think the house is probably doable and the same goes for your business. The issue of spousal maintenance is less of a sure thing.
At the time of a possible dissolution of your marriage, the court would take into account certain factors, such as the length of the marriage and other particular circumstances of your case. For example, did you your give up something substantial, such as a budding career, in order to stay home and take care of children that you may have, or did she forego pursuit of a college education so that you could invest community earnings into the business?
This is the part of your question that is difficult to answer. The best that I or any attorney can do for you is to draft the agreement, and make sure that before she signs, she has her own separate attorney to advise her on what the contract means, and to give her a two week cooling off period after its presented to her to decide whether to sign. In your case, since your fiancee is abroad, I would have this presented to her abroad BEFORE she gets on a plane and gives up life as she knows it to come here and marry you.
If you wait for her to come here, I can just see it now, in court as she argues that you presented this to her after she came here and she felt she had no choice in the matter. I suppose that you could have her come here and offer to pay her a large enough sum of cash to return if she felt uncomfortable signing, such that she could return home and pick up on her life right where she left off. That may undercut the argument that she packed in her old life to start a life with you and felt that she had no other choice but to sign.
Ultimately, I suggest you hire counsel to consult with you and decide if a pre-nuptial agreement is right for you.
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