Family Law for Real Housewives: 90 Day Fiancé Edition

“I’m attracted to her, but only like 55 percent,” remarked Azan about Nicole on 90 Day Fiancé.  

90 Day Fiancé is a hit television documentary series that features couples who applied for a K-1 visa.  On the basis of a K-1 visa, a foreign citizen engaged to an American citizen may enter the United States.  The couple has 90 days to get married or the non-U.S. citizen must leave the country before the visa expires.  

In our ever shrinking world, couples meet from around the globe, whether  through travel, study abroad, or the internet.  90 Day Fiancé progressively showcases the growing number of cross-border relationships. Current estimates indicate that one in five married households in the United States are comprised of at least one spouse born in a foreign country.

Special considerations arise in marriages involving a non-U.S. citizen.  For example, the strict time limitations imposed by the K-1 visa may result in a couple getting married sooner than they otherwise would have if the relationship naturally progressed.

On the most recent season of 90 Day Fiancé, several couples struggled to make this major life decision under time constraints.  Leida, a doctor and former beauty pageant contestant from a wealthy family in Indonesia, opined that 90 days was insufficient time to decide whether she wanted to marry Eric.  She ended up going through with the marriage, commenting that her husband “doesn’t look that bad” at their wedding.  Similarly, Kalani, who got pregnant on a trip to Samoa and has baby number two on the way, voiced hesitation in marrying Aselou.  She questioned his motivations and maturity to parent at age 23.

With an impending deadline, a prenuptial agreement can be powerful tool.  The prenuptial agreement can help limit losses in the event of a rush to the altar that did not work out.  In a prenuptial agreement, a couple can address property division upon divorce, spousal support, rights upon death, among other issues.   

An important caveat is that a prenuptial agreement may be invalidated in a “sham” marriage.  In the immigration context, a sham marriage is a marriage entered into for the sole purpose of obtaining immigration benefits.

Due to the time constraints imposed by a K-1 visa, there may not be enough time to negotiate or finalize a prenuptial agreement.  Alternatively, the couple may opt to enter into a postnuptial agreement after their marriage.

Let’s now learn an important lesson from Ashley and Jay.  Ashley, a 31 year old mother of two, met Jay, age 20, while vacationing at a resort in Jamaica.  They got engaged after less than a week.  After being bombarded with threatening and hateful messages online, they changed their wedding locale to Las Vegas.  The day after they got home, Jay started a Tinder account and began communicating with other women. 

To make matters worse, in the backdrop is a document called an “Affidavit of Support.”  When immigration status is obtained through marriage, the sponsoring spouse, here Ashley, has to file an “Affidavit of Support.”  In an effort to prevent the non-U.S. citizen from becoming a public charge, in the Affidavit of Support, the sponsor is required to affirm that he/she is aware of his/her obligations under the Social Security Act and Food Stamps Act.  If a non-U.S. citizen 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 non-U.S. citizen spouse becomes a U.S. citizen, whichever time period is shorter. 

Other differences that exist in marriages between U.S. citizens and non-U.S. citizens relate to gifts and inheritances.  For example, there is unlimited gifting between spouses who are both U.S. citizens.  However, a gift from a U.S. citizen to a non-U.S. citizen spouse may be subject to taxation if it exceeds a certain amount per year.  Likewise, upon death, while there is an unlimited marital deduction between spouses, if the surviving spouse is a non-citizen he/she will be ineligible for the unlimited marital deduction.