Texans marry foreign brides for various reasons. Military service members, business-people, and oilfield workers fall in love overseas. The internet has no shortage of sites offering to match American men with foreign brides.
A prenup is particularly important when the bride and groom come from different countries. Even when people share the same language, religion, and culture, marriage is difficult and success is never guaranteed. When they speak different languages, grew up in different cultures, have different religious backgrounds, and different expectations of marriage, a premarital agreement is essential.
Perceptions about divorce can also vary, from when it’s appropriate to what happens if one is filed. Someone from a foreign country may never have heard of “Community property.” Even most Texans do not understand the distinction between community and separate property. Many assume that without a prenup community property is automatically divided 50/50. Under Texas Family Code Chapter 7, it is not.
Texas Law Allows Flexibility
Texas law allows flexibility in writing a prenup. The fiancés can agree about who will own what property, percentages of ownership, post-marital support, and any other property matter. Issues about children will be decided on the child’s best interest when the decision is made, not in advance. Nobody knows the circumstances that will exist if a court has to decide what’s best for a child. To say the child will live with one particular parent assumes that person will never change.
Many prenuptial agreements prohibit post-marital support. Usually, each spouse will leave with the property he or she owns. If a foreigner’s employability will be limited, some alimony might be reasonable, or scheduled cash gifts to build some savings. Gift taxes apply to non-resident alien spouses so check with your tax advisor if your spouse is not residing in the United States the year of the transfer. If the foreign bride will maintain real property in the home country, the prenup might provide funds to return home.
If a child is involved, a custody order might require the child to live in Texas, and the other parent might be unemployable, raising financial issues beyond usual child support. The custody order will be decided when custody is an issue, not in the prenup.
The right of a child to support may not be adversely affected by a premarital agreement. A minimal level of support, which a court may exceed, is permitted. Spousal support or alimony can be whatever is agreed.
Translating A Prenup
Translating a prenup is expensive. A better option is to have the foreign fiancé consult a Texas lawyer who speaks the foreigner’s language. Even an official translation will not explain “community” and “separate” property. It will just translate the terms as accurately as possible. A lawyer can explain what those mean. Even 2 hours with most lawyers is less than the cost of translating a well-written prenup. In a state the size of Texas, it’s rare not to find a lawyer who speaks the fiancé’s language. The lawyer need not be in the same town. The agreement can be emailed and the discussion conducted via phone, Skype, or Facetime. If a lawyer who speaks the foreign language cannot be found, a translator can be included in the discussion. This might still cost less than a full legal translation.
Must Both Parties Have Lawyers?
Texas law does not require each spouse to have a lawyer review the prenup. Like any contract, a party may sign without consulting a lawyer. Although it is hard to set aside a Texas prenup, it can be done if a party shows it was not signed voluntarily. The statute does not define voluntary. Having the fiancé consult a lawyer who speaks the person’s native tongue helps reduce the likelihood of a claim the signing was involuntary because it was misunderstood.
Residing Outside Of Texas
The prenup should be written by a lawyer who practices where the couple will live. The standard prenup on www.mcnamaralawyers.com includes language that the parties intend it to be enforced to the full extent of the law where they live if outside Texas. That does not change foreign law. It also means that a foreign judge and lawyers will be trying to understand a Texas prenuptial agreement. Nobody can predict the outcome. If the foreign jurisdiction does not allow prenups, signing one will not change their law. If it does, but in a limited way, the foreign lawyers and judge may be confused by the Texas document.
Prenup Vs. Will
A prenup can also describe the parties’ intent if one dies. A Will is essential and the best way to confirm the deceased’s wishes will be carried out. A prenup is not a substitute for a Will. It expresses the parties’ agreement at the beginning. If one is supposed to leave some of the estate to the other but dies with a Will that does not do that, the prenup may be a basis to sue the estate. If a surviving spouse wishes to challenge the Will, a prenup that is consistent with the Will limits such a challenge.
Prenups are always important. When the spouses are from different countries, it is foolish not to avoid misunderstanding by putting in writing each one’s expectations.