Prenuptial Agreements -- An Overview
Irving & Katherine E. Stoner, Attorney-Mediator
What you need to know if you're considering a prenuptial, or premarital,
A prenuptial agreement ("prenup" for short) is a written contract created by
two people before they are married. A prenup typically lists all of the property
each person owns (as well as any debts) and specifies what each person's
property rights will be after the marriage.
In some states, a prenuptial agreement is known as an
"antenuptial agreement," or in more modern terms, a "premarital
agreement." Sometimes the word "contract" is substituted for
"agreement," as in "prenuptial contract." An agreement made during
marriage, rather than before, is known as a "postnuptial,"
"postmarital," or "marital"
Who Needs a Prenup?
Contrary to popular opinion, prenups are not just for the rich. While prenups
are often used to protect the assets of a wealthy Fiancé, couples of more modest
means are increasingly turning to them for their own purposes. Here are some
reasons that some people want a prenup:
Pass separate property to children from prior marriages. A
marrying couple with children from prior marriages may use a prenup to spell out
what will happen to their property when they die, so that they can pass on
separate property to their children and still provide for each other, if
necessary. Without a prenup, a surviving spouse might have the right to claim a
large portion of the other spouse's property, leaving much less for the
Clarify financial rights. Couples with or without children,
wealthy or not, may simply want to clarify their financial rights and
responsibilities during marriage.
Avoid arguments in case of divorce. Or they may want to
avoid potential arguments if they ever divorce, by specifying in advance how
their property will be divided, and whether or not either spouse will receive
alimony. (A few states won't allow a spouse to give up the right to alimony,
however, and, in most others, a waiver of alimony will be scrutinized heavily
and won't be enforced if the spouse who is giving up alimony didn't have a
Get protection from debts. Prenups can also be used to
protect spouses from each other's debts, and they may address a multitude of
other issues as well.
If You Don't Make a Prenup
If you don't make a prenuptial agreement, your state's laws determine who
owns the property that you acquire during your marriage, as well as what happens
to that property at divorce or death. (Property acquired during your marriage is
known as either marital or community property, depending on your state.) State
law may even have a say in what happens to some of the property you owned before
you were married.
Under the law, marriage is considered to be a contract between the marrying
couple, and with that contract comes certain automatic property rights for each
spouse. For example, in the absence of a prenup stating otherwise, a spouse
usually has the right to:
- share ownership of property acquired during marriage, with the expectation
that the property will be divided between the spouses in the event of a
divorce or at death
- incur debts during marriage that the other spouse may have to pay for, and
- share in the management and control of any marital or community property,
sometimes including the right to sell it or give it away.
If these laws -- called marital property, divorce, and probate laws -- aren't
to your liking, it's time to think about a prenup, which in most cases lets you
decide for yourselves how your property should be handled.
Making a Valid Prenup
As prenuptial agreements become more common, the law is becoming friendlier
toward them. Traditionally, courts scrutinized prenups with a suspicious eye,
because they almost always involved a waiver of legal and financial benefits by
a less wealthy spouse and they were thought to encourage breakups.
As divorce and remarriage have become more prevalent, and with more equality
between the sexes, courts and legislatures are increasingly willing to uphold
premarital agreements. Today, every state permits them, although a prenup that
is judged unfair or otherwise fails to meet state requirements will still be set
However, because courts still look carefully at prenups, it is important that
you negotiate and write up your agreement in a way that is clear,
understandable, and legally sound. If you draft your own agreement, which we
recommend, you'll want to have separate lawyers review it and at least briefly
advise you about it -- otherwise a court is much more likely to question its
How to Draft Your Own Prenup
Before you visit a lawyer, you can begin drafting your own prenuptial
Nolo's Prenuptial Agreements: How to Write a Fair & Lasting
Contract, by Attorney-Mediator Katherine E. Stoner and Shae Irving, J.D.,
shows you how to create a draft agreement yourselves, to bring to separate
lawyers for review. It provides worksheets to help you and your Fiancé determine
what your prenup should cover and clauses for preparing an agreement that suits
your needs, as well as lots of examples and samples to make your job easier.
The book can also be useful for same-sex couples in California, where
domestic partnership gives partners many of the rights and responsibilities of
marriage, and pre-partnership agreements serve the same purpose as a prenup. Prenups for Partners: Essential Agreements for California Domestic
Partners, by Attorney-Mediator Katherine E. Stoner, explains how to use the
book to create a valid pre-partnership agreement.
Divorce and Children:
Helping Kids Deal With the Effects
How to ease the pain of divorce for your children -- young and old.
Divorcing parents want to reduce the impact on their children, whether the
children are young or already adults. The best way to do this is to recognize
how the divorce is likely to affect your children, and then take steps to
alleviate their pain and uncertainty.
How Divorce Affects Children
Researchers have filled volumes studying and analyzing the effect of divorce
on children. Studies examining the children of divorce have found that most
suffer a sense of loss that can manifest in many different ways, depending on
the children's ages and unique personalities, as well as on how parents handle
the divorce themselves.
Younger children may regress in areas such as sleeping and toilet training,
or throw more tantrums. School-age and teenage children may show symptoms of
depression, rebel against discipline, or change their eating and sleeping
Recent research has shown that adult children of divorce have higher divorce
rates than adults with parents in stable marriages -- and even those who remain
married report they are have less trust for their spouses than people whose
parents have remained married.
As a parent, you can take an active role in easing your children's pain and
reducing negative feelings and behaviors.
How to Help Your Children Cope with Divorce
The single most important way that you can help your kids during a divorce is
to have a cooperative relationship with your ex and keep conflicts to a minimum.
Especially if your kids are still young, it's important to reassure them
repeatedly that you both love them, that the divorce was not their fault,
and that they will always have two parents. It's also crucial to provide your
kids with the practical information they'll want to know, like who will be
driving them to school and where they will sleep.
But the proof is in the pudding. To provide them with the assurances they
need, you will have to be a model of maturity. Here are some tips on how to do
Process, don't vent. You don't have to hide the fact that you are
stressed or that the divorce brings up difficult feelings for you. It's fine to
talk about those things in general ways, without burdening the kids with the
details. In fact, airing some of these feelings and encouraging the children to
reciprocate by sharing their own feelings may help them lose some of the fear
and anger they may harbor about the divorce.
Even years after the divorce, make sure you are available to listen to your
kids express their feelings whenever they want to talk. As they grow and
develop, they may need new information or want to express differing
perspectives. Depending on their ages and personalities, you may need to
encourage them to continue to talk about their feelings about the divorce.
Keep children out of the middle. If the children are teens or even
adults when you divorce, be especially careful not to drag them into the fray by
confiding too many details or enlisting them as negotiators in your divorce. Be
sure to address any nagging issues directly with your ex-spouse -- either alone
or with the help of a mediator -- rather than using the kids as messengers or
Keep free of venom. Don't express bitterness towards your ex -- and
don't in any way imply that your former spouse isn't a good parent or that your
kids are wrong to want a relationship with their other parent. Instead, continue
to support and foster their relationship in every way you can so that the kids
can be free of guilt and ambivalence.
Establish new traditions. Remember that it isn't only young children
who may feel a sense of loss around holidays and special times. Many adult
children become angry and confused about losing family rituals (even if they
once groused about them). Be flexible in establishing new traditions, especially
around holidays and celebrations of special events, such as birthdays. Be
sensitive about incorporating new individuals into family groupings, and look
for fun activities to help relieve stress and encourage building or rebuilding
Be vigilant. Divorce is stressful for kids of any age. Even if your
child has generally had a positive spin on things, keep an eye out for rough
patches. Arrange for counseling or encourage your children to seek help if you
see serious signs of emotional fragility.
If Your Children Are Young
If you have young children, your post-separation life will involve
coordination and cooperation as parents. It's a good idea to anticipate
parenting issues by spelling out guidelines and ground rules in a written
parenting plan that goes beyond the cursory custody terms that might have been
spelled out in a divorce agreement.
A parenting plan for young children of divorcing parents can cover:
- responsibility for medical and dental care
- the times your children spend with each of you
- holiday arrangements
- how to handle schooling, discipline, and extracurricular activities, and
- other specific issues that likely to come up, especially related to
If you and your ex-spouse are stuck about how to proceed with a parenting
plan, consider using mediation to help work out the details. You can
prepare for mediation by first assessing your children's needs and considering
how each of you can best meet them. This is especially important if you will use
court-sponsored mediation, which usually limits the time available for working
If Your Children Are Adults
Even adult children may face thorny issues when parents divorce, particularly
concerning the changed relationship they will have with each parent. Just like
younger kids, adult children often go through a sort of grieving process when
their parents divorce -- complete with anger, confusion, and despair.
Foster sibling bonding. One unexpected phenomenon related to divorce
is that it often brings adult children emotionally closer to one another, even
if they were not close as younger children. Do what you can to foster such
relationships -- and resist the temptation to view them as threatening or
divisive. Realize that your children, with their shared past and experiences,
are often natural sources of comfort and support for one another.
Encourage them to seek support from outsiders. The overwhelming
emotion adult children report when they learn their parents are divorcing is
loneliness. Support groups in which they can talk with those experiencing
similar feelings may be especially helpful in easing this pain. A number of such
groups operate online.
For more advice on helping your children deal with divorce -- before you
file, during the divorce, and after -- get Nolo's Essential Guide to
Divorce, by Emily Doskow (Nolo).
Alimony: What You Need to Know Before Divorce
Learn what alimony is and how it works.
If you're facing a divorce, you'll have to face reality: Alimony payments
(monthly support payments one divorced spouse pays the other) are alive and
well in the American divorce system. And if you earn substantially more money
than a spouse to whom you have been married for several years, there is a good
chance you will be ordered to pay some alimony. On the other hand, alimony
generally isn't awarded for short marriages or where you and your spouse earn
close to the same amount.
If alimony is ordered, you will generally have to pay a specified amount each
- a date set by a judge several years in the future
- your former spouse remarries
- your children no longer need a full-time parent at home
- a judge determines that after a reasonable period of time, your spouse has
not made a sufficient effort to become at least partially self-supporting
- some other significant event -- such as retirement -- occurs, convincing a
judge to modify the amount paid, or
- one of you dies.
As with most issues in your divorce, you and your spouse can agree to the
amount and length of time alimony will be paid. But if you can't agree, a court
will set the terms for you. Unfortunately, having a court make the decision
means there will be a trial, and that can cost you a lot of time and money.
If you expect to pay alimony. The fact you have to pay alimony -- also
known in some states as "spousal support" or "maintenance" -- to your ex-spouse
doesn't amount to a finding that you are a bad person. Consider it part of the
cost of entering a marriage that you probably thought would last until death
parted you, but -- for reasons you didn't anticipate -- didn't. Alimony has been
the law for more than 100 years, and while it is ordered somewhat less
frequently these days, there is no sign that courts are going to stop making
alimony orders for good.
If you expect to receive alimony. The question of whether you qualify
for alimony is usually resolved by looking at your capacity to earn -- which is
not necessarily what you are earning at the time you go to court -- how much
your spouse earns, and your standard of living during the marriage.
You might also be required to make some changes in your life and work. For
example, if you have a part-time job that doesn't pay well, you may be required
to attempt to find full-time employment in a better-paid field. Experts called
vocational evaluators are sometimes hired to report to the court on the job
prospects for a spouse who hasn't been fully employed for a while. The evaluator
will administer vocational tests and then shop your credentials with potential
If your spouse refuses to pay. Finally, if you secure an alimony order
but your spouse refuses to make the required payments, take immediate legal
action to enforce the order through a "contempt" proceeding or an "earnings
assignment order." Orders to pay monthly alimony have the same force as any
other court order and, if handled properly, can be enforced with the very real
possibility of obtaining regular payments. If necessary, a court may jail a
reluctant payor to show that it means business.
To learn more about alimony and other issues arising in divorce,
get Nolo's Essential Guide to Divorce, by attorney Emily Doskow
Types of Child Custody
Learn the difference between legal custody, physical custody, sole
custody, and joint custody.
Physical custody means that a parent has the right to have a child live with
him or her. Some states will award joint physical custody to both parents when
the child spends significant amounts of time with both parents. Joint physical
custody works best if parents live relatively near to each other, as it lessens
the stress on children and allows them to maintain a somewhat normal
Where the child lives primarily with one parent and has visitation with the
other, generally the parent with whom the child primarily lives will have sole
physical custody, with visitation to the other parent.
Legal custody of a child means having the right and the obligation to make
decisions about a child's upbringing. A parent with legal custody can make
decisions about schooling, religion, and medical care, for example. In many
states, courts regularly award joint legal custody, which means that the
decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or
her from the decision-making process, your ex can take you back to court and ask
the judge to enforce the custody agreement. You won't get fined or go to jail,
but it will probably be embarrassing and cause more friction between the two of
you -- which may harm the children. What's more, if you're represented by an
attorney, it's sure to be expensive.
If you think you have circumstances that make it impossible to share joint
legal custody (the other parent won't communicate with you about important
matters or is abusive), you can go to court and ask for sole legal custody. But,
in many states, joint legal custody is preferable, so you will have to convince
a family court judge that it is not in the best interests of your child.
One parent can have either sole legal custody or sole physical custody of a
child. Courts generally won't hesitate to award sole physical custody to one
parent if the other parent is deemed unfit -- for example, because of alcohol or
drug dependency, a new partner who is unfit, or charges of child abuse or
However, in most states, courts are moving away from awarding sole custody to
one parent and toward enlarging the role a divorced father plays in his
children's lives. Even where courts do award sole physical custody, the parties
often still share joint legal custody, and the noncustodial parent enjoys a
generous visitation schedule. In that situation, the parents would make joint
decisions about the child's upbringing, but one parent would be deemed the
primary physical caretaker, while the other parent would have visitation
It's understandable that there may be animosity between you and your
ex-spouse. But it's best not to seek sole custody unless the other parent causes
direct harm to the children. Even then, courts may simply allow supervised
visitation, while still ordering joint legal custody.
Parents who don't live together have joint custody (also called shared
custody) when they share the decision-making responsibilities for, and/or
physical control and custody of, their children. Joint custody can exist if the
parents are divorced, separated, or no longer cohabiting, or even if they never
lived together. Joint custody may be:
- joint legal custody
- joint physical custody (where the children spend a significant portion of
time with each parent), or
- joint legal and physical custody.
It is common for couples who share physical custody to also share legal
custody, but not necessarily the other way around.
Joint Custody Arrangements
When parents share joint custody, usually they work out a schedule according
to their work requirements and housing arrangements and the children's needs. If
the parents cannot agree on a schedule, the court will impose an arrangement. A
common pattern is for children to split weeks between each parent's house or
apartment. Other joint physical custody arrangements include:
- alternating months, years, or six-month periods, or
- spending weekends and holidays with one parent, while spending weekdays
with the other.
There is even a joint custody arrangement where the children remain in the
family home and the parents take turns moving in and out, spending their out
time in separate housing of their own. This is called "bird's nest custody."
Pros and Cons of Joint Custody
Joint custody has the advantages of assuring the children continuing contact
and involvement with both parents. And it alleviates some of the burdens of
parenting for each parent.
There are, of course, disadvantages:
- Children must be shuttled around.
- Parental noncooperation or ill will can have seriously negative effects on
- Maintaining two homes for the children can be expensive.
If you do have a joint custody arrangement, maintain detailed and organized
financial records of your expenses. Keep receipts for groceries, school and
after-school activities, clothing, and medical care. At some point your ex may
claim she or he has spent more money on the kids than you have, and a judge will
appreciate your detailed records.
For more information on child custody arrangements, see Building a
Parenting Agreement That Works: How to Put Your Kids First When Your Marriage
Doesn't Last, by Mimi E. Lyster.
Practical steps to help you create a workable parenting plan with your
child's other parent.
If you are divorcing and you have kids, the most important task ahead of you
is to make an agreement with your spouse about custody and visitation. No matter
how angry you may be or how difficult your communication with your spouse is,
put your children first and do everything you can to make decisions together
with your spouse, rather than letting a judge or court evaluator make them for
you. This means keeping an open mind and getting whatever professional help
you might need -- from a therapist, a custody evaluator, or a family
What Is a Parenting Agreement?
A written parenting agreement or parenting plan is helpful in setting the
stage for a successful post-divorce relationship. Just the process of creating
an agreement allows you and your future ex-spouse to discuss most or all of the
issues that will come up during your children's lives. In addition, if, after
you create and sign an agreement, the other parent continuously breaks the
agreement, you will have proof that he or she originally agreed to the agreement
Factors you should consider in writing your agreement include:
- custody and living arrangements
- financial issues
- medical care
- religious training
Before you try to negotiate with the other parent or seek the help of any
professional in developing a parenting agreement, it makes sense to collect and
review all relevant documents. If you're in the midst of a divorce, or if you've
already been involved in custody proceedings, these might include:
- court documents you have filed or received, such as a "summons,"
"petition," "complaint," "response," "answer," "declaration," or "affidavit"
- correspondence from an attorney, counselor, mediator, or court official
regarding your separation, divorce, paternity, child support, custody, or
- court orders regarding a legal separation, divorce, paternity declaration,
or award of custody
- previously mediated, arbitrated or negotiated agreements between you and
the other parent
- documents dissolving your religious marriage, or describing your marital
status and your options according to your religious denomination, and
- reports, letters, or evaluations from school officials, counselors,
therapists, or others who have an insight into your children.
You won't necessarily need all of these documents to develop a parenting
plan. Nevertheless, having them can help expedite matters, especially if you are
going through a legal separation or divorce. For example, if you or the other
parent have already initiated a court proceeding, you may have a deadline for
submitting your parenting agreement.
Carefully read the documents you gather. If you need help in finding or
understanding any of them, an attorney, court clerk, paralegal, marriage
counselor, or mediator might be useful. Some of these folks might also be
able to help you work with your spouse.
|Resources for Creating a
You might consider using a family law mediator to help you
work out a parenting plan that's in everyone's best interests.
In addition, Nolo publishes a helpful book called Child
Custody: Building Parenting Agreements That Work, by Mimi E.
Lyster, that shows you how to build your own custody and visitation
U.S. Immigration Basics
Whether you plan to come to the United States for a short visit or a
permanent stay, your first step is probably to apply for a visa.
Many people think they can show up at a U.S. embassy or border post, describe
why they'd make a good addition to U.S. society, and be welcomed in.
Unfortunately, this is the exact opposite of how the U.S. immigration system
Instead, people who want to come to the U.S., whether temporarily or
permanently, must determine whether they fit into eligibility categories for
either "permanent residence" (a green card) or for a temporary stay
Then they must submit an application -- in fact, often a series of
applications -- to one or more of the U.S. agencies responsible for carrying out
the immigration laws. These include U.S. Citizenship and Immigration Services
(USCIS), which has offices across the United States, and the U.S. Department of
State (DOS), which manages consulates and embassies around the world.
What Permanent Residence (a Green Card) Is
If you want to be able to make your permanent home in the United States,
you'll need what is called "permanent residence," or a "green card." Green card
holders can live and work in the U.S. and travel in and out, with very few
restrictions (though they can't vote, and can be deported if they abuse their
Family members of U.S. citizens make up the largest number of green cards
issued each year. Others are issued to investors and workers who have been
petitioned by U.S. employers or have special skills. Still other categories have
a humanitarian basis, such as refugee or political asylum status (which can lead
to a green card), for people who are fleeing persecution.
What a Temporary (Nonimmigrant) Visa Is
People who want to come to the United States for a limited time need what is
called a "nonimmigrant" visa. This lets them participate in specified activities
(such as studying, visiting, or working) until their visa runs out. Students and
businesspeople make up the largest groups of nonimmigrant visa holders.
Nonimmigrant visas are also issued for tourists, exchange visitors, and workers
with some kind of specialty that is lacking in the U.S. workforce. For more
Exception: Visa Waiver Program
A visa is not necessary for short-term visitors from one of the Visa Waiver
Program countries listed at http://travel.state.gov/. You can come to the U.S. for up to
90 days for business or pleasure purposes if you're from one of these countries.
You will, however, need to present a machine-readable passport. Also, beware:
The ease of your entry is balanced by the ease with which you can be kicked out
-- you automatically give up many rights and benefits when traveling without a
To enter on a visa waiver, simply present yourself, your passport, and your
ticket home to the officers you'll meet upon your U.S. arrival. If you come by
land through Canada or Mexico, you'll also be asked for proof of sufficient
funds to pay for your stay.
Applying for Immigration Rights
After figuring out what type of visa or green card you're eligible for,
you'll need to figure out how to get it. Most people (with the occasional
exception of Mexicans and Canadians or those traveling with a visa waiver) must
obtain a visa at a U.S. consulate before departing for the United States. If
you're already in the United States legally, you may be able to apply to
"adjust" your status to permanent resident, or "change" your status to another
type of visa.
Where to Find the U.S. Immigration Laws
Your possibilities for a visa or green card are set out under U.S. federal
law. Being "federal," the law is the same across the United States. If you want
to read the U.S. immigration laws -- which very few people actually want to do
-- they're found in Title 8 of the U.S. Code, or in the Immigration and
Nationality Act (I.N.A.) In addition, information on how USCIS intends to carry
out these laws is found at Title 8 of the Code of Federal Regulations (C.F.R.).
The DOS regulations are at Title 22 of the C.F.R. The CFR can be searched at the
Government Printing Office website.
The trouble is that even lawyers have trouble researching the U.S.
immigration laws -- they're considered to be the most convoluted and easily
misunderstood portions of all U.S. law. But if you have a specific reference to
a section that you'd like to read for yourself, by all means look it up, then
seek professional help if you need it.
Your best bet for getting any professional help with your immigration
situation is to hire an experienced immigration lawyer. Ask friends for
referrals, go to the website of the American Immigration Lawyers Association
(AILA), or go straight to Nolo's Lawyer Directory for a list
of immigration attorneys in your geographical area (click on the "Types of
Cases" and "Work History" tabs to learn about a particular lawyer's
Whatever you do, don't go straight to USCIS for advice. The people who staff
their front desk are not all well trained, and if they give you wrong
information, they take no responsibility, even if it causes your deportation or
destroys your chances of immigrating. This happens!
Many of these immigration laws are described in U.S. Immigration Made
Easy, by Ilona Bray, J.D. (Nolo). This book discusses how to obtain
many different visas, including the K-1 visa for Fiancés, the B-1 and B-2
business and tourist visas, the H-1B, H-2B, and H-3 visas for temporary
specialty or agricultural workers, the L-1 visa for intracompany transferees,
the E-1 and E-2 visas for treaty traders and investors, the F-1 and M-1 visas
for students, the J-1 visa for exchange visitors and scholars, or the O, P, or R
visas for temporary workers, and how to get a green card through a family
member, through the Diversity Visa Lottery, or as an asylee or refugee.
The Risks of Lying to the U.S. Government
One of the worst things you can do to your chances of getting a visa or green
card is to lie, either on paper or during an interview with a U.S. border or
other immigration inspector. Lies can have both immediate consequences, such as
not being able to enter the U.S., and long-term consequences, such as not being
able to get a green card -- ever.
Francois, a French citizen, applies at the U.S. embassy in Paris
for a tourist visa. He fears he will not be allowed to enter the
U.S. as a tourist if he reveals that he has a girlfriend in New
York. He states in his application that he will be visiting various
friends. When he arrives at JFK Airport in New York, an immigration
inspector finds a letter in his luggage from his girlfriend, in
which she says she is looking forward to his long visit. Francois is
put on the next flight home, and not allowed to return for five
Assume that Francois's immigration inspector does not find the
letter from his girlfriend and allows him to enter the country.
After he arrives, Francois and his girlfriend decide to marry. He
files an application for permanent residence with USCIS. It forwards
his application to the U.S. consulate in Paris for review. This
reveals that he lied about his plans. To obtain permanent residence,
Francois will have to argue that USCIS should overlook his previous
lie and allow him to stay. If he loses, he can be denied permanent
residence and forced to leave the
Who Can Be Kept Out
No matter what eligibility category you fall into -- whether you've married a
U.S. citizen, received a job offer, or been accepted to a school -- the U.S. has
the right to say no. And not just because there's something wrong with your
application. The immigration law contains a list of things, like crimes and
certain diseases, that makes someone "inadmissible." For more information, see
When the U.S. Can Keep You Out.
Sponsoring a Fiancé or Spouse for a Green Card
Planning your immigration strategy is as important as planning your
If you are a U.S. citizen or permanent resident, and you are engaged or
already married to a citizen of another country, that person may be eligible for
a green card. However, many people believe, wrongly, that they can just bring
their Fiancé or spouse to the United States and the immigrant will be given an
instant green card or even U.S. citizenship -- a belief that has led to sad
cases of people being sent right home again.
Your Fiancé or spouse will have to go through a multi-step application
process. It's your job to start the process, by submitting either a Fiancé visa
petition (only available if you're a U.S. citizen, but can be used whether you
are already married or just engaged) or an immigrant visa petition. Your Fiancé
or spouse can't enter the U.S. until both the petition and subsequent
applications have been approved.
Note: If you're not yet a U.S. citizen, but have U.S. permanent residence (a
"green card"), you cannot bring your Fiancé to the United States until you're
married -- and even then, you can bring your spouse only after he or she spends
some years on a waiting list.
No matter what, be prepared for a long wait. Every type of visa application
involves several stages, including application forms, a medical examination,
fingerprinting, and various approvals.
Eligibility for Various Visas
The requirements for the Fiancé visa and the marriage visa are different.
To qualify for a Fiancé visa, the immigrant must:
- intend to marry a U.S. citizen
- have met the citizen in person within the last two years, and
- be legally able to marry.
Also, the immigrant must be coming from another country -- a Fiancé visa
won't be given to someone who is already in the United States.
As part of the Fiancé visa application process, you'll have to prove your
intention to marry, by providing documents such as copies of your love letters,
phone bills, and wedding ceremony contracts. You'll also have to prove that
you've met within the last two years, by submitting copies of plane tickets,
hotel bills, and the like.
This meeting requirement causes problems for many couples. If you simply
can't afford to meet, the immigration authorities will say, "Tough luck." If,
however, you haven't met because of proven cultural customs or extreme hardship
to the U.S. citizen spouse, they may be willing to lift the meeting requirement
in for you.
Marriage-Based Visas (Green Cards)
To be eligible for an immigrant visa, or green card, based on marriage, the
immigrant must be:
- legally married (it doesn't matter in what country) to a U.S. citizen or
- not married to someone else at the same time, and
- not married to someone who has another wife or husband.
Also, the marriage must be the real thing, not just a sham to get a green
Within the application process, you'll have to prove all of the above things.
Legal marriage is usually the easiest to prove, by simply providing a copy of
your marriage certificate -- though people who get married outside the United
States sometimes have a little trouble, because USCIS usually demands that the
certificate come from a government office, rather than a church, a ship's
captain, or other nongovernmental place.
To show that the marriage is the real thing, you'll have to provide copies of
documents such as joint bank statements, children's birth certificates, photos
of the wedding and afterwards, love letters, and more.
To qualify for any type of visa, every immigrant must show that he or she is
not "inadmissible" (for instance, has a long criminal record or a communicable
disease like tuberculosis or HIV).
Using a tourist
visa or other temporary visa. If the immigrant used a tourist or other
visa to get to the U.S. for the primary purpose of getting married, see an
attorney. The immigrant could be found liable for visa fraud, and denied the
green card as a result.
Overview of Application Process
How and where the immigrant applies for a green card depends on a number of
factors, including who he or she is marrying, where the immigrant is now, and,
if he or she is in the United States, whether he or she got there legally. For
details on these matters, and help completing the application forms, assembling
the appropriate documents, and having a successful interview, see Fiancé
& Marriage Visas: A Couple's Guide to U.S. Immigration, by Attorney
Ilona Bray (Nolo).
Applying for U.S. Citizenship
Find out who is eligible for U.S. citizenship and how to apply.
U.S. citizenship gives a person as many rights as the U.S. has to offer; for
example, the right to vote, petition for family members to immigrate, and live
abroad without losing your right to return. For these reasons, citizenship is
not easily obtained.
To become a U.S. citizen, you must first have a green card (permanent
residence) and then meet other requirements, listed below. There are only a few
rare exceptions in which a person goes straight from having no U.S. status to
getting U.S. citizenship; some are
The Eligibility Criteria
If you are interested in applying for U.S. citizenship, first make sure that
all of the following apply to you:
- you have lived in the United States as a lawful permanent resident for at
least five years (with exceptions for refugees, people who get their green
card through political asylum, spouses of U.S. citizens, and U.S. military
- you have been physically present in the United States for at least half of
the last five years
- you have lived in the district or state where you are filing your
application for at least three months
- you have not spent more than a year outside the United States
- you have not made your primary home in another country
- you are at least 18 years old
- you have good moral character
- you are able to speak, read, and write in English
- you are able to pass a test covering U.S. history and government, and
- you are willing to swear that you believe in the principles of the U.S.
Constitution and will be loyal to the United States.
Applying for citizenship opens your whole immigration history to
review. U.S. Citizenship and Immigration Services (USCIS) will
carefully investigate your background. If it discovers something wrong -- for
example, that you used fraud to get your green card or abandoned your residency
by making your home outside the United States -- it can strip you of your green
card and send you out of the country.
For more on the eligibility and application requirements for
citizenship, including important exceptions, the rights of disabled
persons, and the details of how to apply, see Becoming a U.S.
Citizen: A Guide to the Law, Exam & Interview, by Attorney
The Application Process
You'll need to complete a citizenship application and send it in with a copy
of your green card, the required photos, and the appropriate fee. After filing
your application, you will probably wait for many months, depending on your
local USCIS office. Then you will be called in for a fingerprint appointment,
and later an interview appointment.
At the interview, a USCIS officer will test your English language ability
(unless you are over 50 and fit within an exception) and your knowledge of U.S.
history and government. Applicants who are disabled can ask for accommodations
at the interview, such as a sign language interpreter or wheelchair
If all goes well at the interview, you'll receive an appointment for your
swearing-in ceremony. At that time, you actually become a citizen, and receive a
certificate of naturalization to prove it. As a citizen, you can petition to
have close family members join you in the United States.
Mediation: What Kinds of Cases Can Be Mediated?
Mediation can be used for most civil (noncriminal) disputes, and is
sometimes available even when courts are not.
Most civil (noncriminal) disputes can be mediated, including those involving
contracts, leases, small business ownership, employment, and divorce. For
example, a divorcing couple might mediate to work out a mutually agreeable child
custody agreement, or estranged business partners might choose mediation to work
out an agreement to divide their business. Nonviolent criminal matters, such as
claims of verbal or other personal harassment, can also be successfully
Although there are hundreds of thousands of laws on the books, many types of
common disputes simply do not raise a legal claim that you can take to court.
Disputes between family members, employees, or neighbors are sometimes of this
type. Fortunately, mediation is available even when courts are not.
For example, a suburban homeowner might find that the formal legal system
offers no realistic way to deal with his neighbor's overly bright driveway
lights that shine in his bedroom window. The neighbors could mediate the
disagreement, however. Mediation gives the participants an opportunity to raise
and discuss any issues they might wish to hash out. For example, it might turn
out that the neighbor lit his driveway because the homeowner's dog went on his
lawn, or because the homeowner's tree was encroaching on his property. Because
mediation can handle any number of outstanding gripes or issues, it offers a way
to discuss (and solve) the problems underlying a dispute -- and create a
truly lasting peace.
No Fault Divorce Vs. Fault Divorce FAQ
is a "no fault" divorce?
is a "fault" divorce?
a spouse successfully prevent a court from granting a divorce?
I have to live in a state to get a divorce there?
an out-of-state divorce be enforced?
What is a "no fault"
"No fault" divorce describes any divorce where the spouse asking for a
divorce does not have to prove that the other spouse did something wrong. All
states allow no fault divorces.
To get a no fault divorce, one spouse must simply state a reason for the
divorce that is recognized by the state. In most states, it's enough to declare
that the couple cannot get along (this reason goes by such names as
"incompatibility," "irreconcilable differences," or "irremediable breakdown of
In some states, however, the couple must live apart for a period of months or
years before they can obtain a no fault divorce.
What is a "fault"
A fault divorce may be granted when the required grounds are present and at
least one spouse asks that the divorce be granted on the grounds of fault. Only
some states allow fault divorces.
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or physical pain) -- this is the
most frequently used ground for divorce
- desertion for a specified length of time
- confinement in prison for a set number of years, and
- physical inability to engage in sexual intercourse, if it was not
disclosed before marriage.
Why choose a fault divorce? Some people don't want to wait out the period of
separation required by their state's law for a no fault divorce. And, in some
states, a spouse who proves the other's fault may receive a greater share of the
marital property or more alimony.
What if both spouses are at fault? When both parties have shown grounds for
divorce, the court will grant a divorce to the spouse who is least at fault
under a doctrine called "comparative rectitude." Years ago, when both parties
were at fault, neither was entitled to a divorce. The absurdity of this result
gave rise to the concept of comparative rectitude.
Can a spouse
successfully prevent a court from granting a divorce?
One spouse cannot stop a no fault divorce. Objecting to the other spouse's
request for divorce is itself an irreconcilable difference that would justify
A spouse can prevent a fault divorce, however, by convincing the court that
he or she is not at fault. In addition, several other defenses to a divorce may
- Condonation. Condonation is someone's approval of another's
activities. For example, a wife who does not object to her husband's adultery
may be said to condone it. If the wife sues her husband for divorce, claiming
he has committed adultery, the husband may argue as a defense that she
condoned his behavior.
- Connivance. Connivance is the setting up of a situation so that the
other person commits a wrongdoing. For example, a wife who invites her
husband's lover to the house and then leaves for the weekend may be said to
have connived his adultery. If the wife sues her husband for divorce, claiming
he has committed adultery, the husband may argue as a defense that she
connived -- that is, set up -- his actions.
- Provocation. Provocation is the inciting of another to do a certain
act. If a spouse suing for divorce claims that the other spouse abandoned her,
her spouse might defend the suit on the ground that she provoked the
- Collusion. If a couple lives in a state where no fault divorce
requires that the couple separate for a long time and the couple doesn't want
to wait, they might pretend that one of them was at fault in order to
manufacture a ground for divorce. This is called collusion, because they are
cooperating in order to mislead the judge. If one spouse decides he no longer
wants a divorce (before the divorce is granted), he could raise the collusion
as a defense.
But these defenses are rarely used -- for a couple of practical reasons.
First, proving a defense may require witnesses and involve a lot of time and
expense. Second, your efforts will likely come to nothing. Chances are good that
a court will eventually grant the divorce, because there is a strong public
policy against forcing people to stay married when they don't wish to be.
Do I have to live in
a state to get a divorce there?
All states require a spouse to be a resident of the state -- often for at
least six months and sometimes for as long as one year -- before filing for a
divorce there. Someone who files for divorce must offer proof that he or she has
resided there for the required length of time. Only three states -- Alaska,
South Dakota, and Washington -- have no statutory requirement for resident
status. In other words, being a resident at the time you file is enough.
If you think that your spouse may file for divorce in another state, it may
be prudent to spend the money up front and file first -- in your home state.
Rarely is a divorce settled in one court appearance, and, if your spouse files
elsewhere, you could rack up a lot of traveling expenses. Also, any
modifications to the divorce decree, including the property settlement agreement
and arrangements for child custody and support, must be filed in the original
state. This could keep you traveling out of state for years to come, especially
if you have children with your spouse.
Can an out-of-state
divorce be enforced?
If one spouse meets the residency requirement of a state or country (such as
having lived there from six months to a year), a divorce obtained there is
valid, even if the other spouse lives somewhere else. The courts of all states
will recognize the divorce.
However, decisions a court makes regarding property division, alimony,
custody, and child support may not be valid unless the court had jurisdiction
over the nonresident spouse. The court gets jurisdiction when the nonresident
spouse is personally served with the divorce documents (meaning they are
delivered into the person's hands), or consents to jurisdiction. A nonresident
spouse consents to jurisdiction by showing up at a court date or signing an
affidavit of service, acknowledging receipt of the filed legal documents. It can
also happen if the nonresident spouse abides by the rulings of the court; for
example, by paying court-ordered child support.
If you receive documents from a foreign country, you may want to consult an
attorney about whether your state court or the foreign court governs the issues.
This depends on many factors, such as which particular country is involved,
where the parties lived and for how long, and, of course, whether children are
Divorce Mediation FAQ
How to create a divorce agreement with the help of a mediator --
without going to court.
is divorce mediation, and how is it different from arbitration?
is mediation better than going to a lawyer -- or is it?
is the difference between court-ordered mediation and private mediation?
do mediating spouses protect their legal rights?
the mediator meet with both spouses together or separately?
much does mediation cost?
long does mediation take?
can a divorcing couple find a good mediator?
What is divorce
mediation, and how is it different from arbitration?
Divorce mediation is a process in which divorcing spouses try to negotiate an
acceptable divorce agreement with the help of a neutral third party: the
mediator. The mediator helps the spouses to communicate and negotiate but
doesn't make any decisions for them.
Both mediation and arbitration involve a neutral third party who is not a
judge. In mediation, the neutral party has no power to make decisions. In
arbitration, the neutral third party -- the arbitrator -- listens to the facts
and then decides the case, just as a judge would. Although the parties can
present evidence and make arguments, they have no say in the final
Why is mediation
better than going to a lawyer -- or is it?
Using mediation to negotiate a divorce agreement is almost always going to
take less time, cost less, and result in a more solid agreement than using a
lawyer to take the same case through the courts. When you are going to have an
ongoing relationship with your ex-spouse, such as when you have kids together,
mediation can help to improve communication and make your future interactions a
little bit easier.
For some couples, however, negotiating directly with each other, even with
the help of a mediator, is not possible -- either because of problems in the
relationship (such as domestic violence or substance abuse) or because a spouse
is unwilling to mediate. Even if you decide to mediate, you may want
to hire a lawyer in a limited capacity to consult with you outside of the
mediation. Many mediating spouses find it helpful to work with a consulting
lawyer who can offer legal advice and review the settlement agreement before it
What is the
difference between court-ordered mediation and private mediation?
As its name implies, court-ordered mediation is mediation that is
required by the court as a part of a divorce proceeding. In many places,
mediation is mandatory when there are custody or visitation issues. In fact,
court-ordered mediation usually is limited to child custody and visitation
issues, while private mediation often also covers financial issues and property
division. There is often no fee charged for court-ordered mediation, whereas
private mediators usually charge an hourly or per-session fee. The mediator in a
court-sponsored program often makes a report to the court; private mediation is
How do mediating
spouses protect their legal rights?
Because divorce involves legal questions, every divorcing spouse should know
and understand his or her legal rights before agreeing to a settlement. One way
for a mediating spouse to do this is to work with a consulting lawyer who knows
and understands mediation.
Doing some independent legal research is another option. It's best to do this
as early in the process as possible, then follow up with a legal review before
signing the settlement agreement that comes out of the mediation.
Does the mediator
meet with both spouses together or separately?
Some mediators prefer to work separately with each spouse, acting as a
go-between. Others prefer joint meetings where both spouses are
present and communication is more direct. There can be advantages and
disadvantages to each approach, depending on the circumstances of the particular
couple. This is a question that divorcing spouses should address in advance with
a potential mediator.
How much does
Most mediations involve an hourly or per-session fee, except for those that
are ordered by a court or conducted through a community-based mediation agency.
These agencies may provide mediation at a reduced cost or even for free. The
number of sessions needed to gather information and negotiate an agreement will
vary from couple to couple, so the cost of the mediation will also vary.
Mediation, however, will usually be much less costly than adversarial
litigation. A divorce mediator in private practice might charge anywhere from
$100 to a couple of hundred dollars an hour, depending on where the mediator
How long does
Mediation almost always takes less time than litigation. Depending on the
issues, it can even take place in one day, although most divorcing couples meet
for several sessions on separate days over a period of days or weeks or
How can a divorcing
couple find a good mediator?
Personal referrals are usually the best way to find any professional,
including a mediator. But because mediation is a relatively new field, personal
referrals may not be possible. In that case, divorcing couples may need to do a
little research. Using Divorce Mediation, by attorney-mediator
Katherine E. Stoner (Nolo), includes chapters on finding and evaluating
Dividing Property and Debt During Divorce FAQ
How property and debts are divided when you get divorced.
are property and debts divided at divorce?
do we distinguish between community and non-community property?
gets to stay in the house?
How are property and
debts divided at divorce?
It is common for a divorcing couple to decide about dividing their property
and debts themselves (with or without the help of a neutral third party like a
mediator), rather than leaving it to the judge. However, if a couple cannot
agree, they can submit their property dispute to the court, which will use state
law rules to divide the property.
Courts divide property under one of two basic schemes: community property or
equitable distribution. Debts are divided according to the same principles.
Community property. In Alaska,
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,
Wisconsin, and Puerto Rico, all property of a married person is classified as
either community property (owned equally by both spouses) or the separate
property of one spouse. At divorce, community property is generally divided
equally between the spouses, while each spouse keeps his or her separate
Equitable distribution. In all other states, assets and
earnings accumulated during marriage are divided equitably (fairly), but not
necessarily equally. In practice, often two-thirds of the assets go to the
higher-wage earner and one-third to the other spouse.
Division of property does not necessarily mean a physical division. Rather,
the court may award each spouse a percentage of the total value of the property.
Each spouse will get personal property, assets, and debts whose worth adds up to
his or her percentage. (It is illegal for either spouse to hide assets in order
to shield them from property division.)
How do we distinguish
between community and non-community property?
Very generally, here are the rules for determining what's community property
and what isn't:
Community property includes all
earnings during marriage and everything acquired with those earnings. All
debts incurred during marriage, unless the creditor was specifically looking
to the separate property of one spouse for payment, are community property
Separate property of one spouse includes gifts and inheritances
given just to that spouse, personal injury awards received by that spouse, and
the proceeds of a pension that vested (that is, the pensioner became legally
entitled to receive it) before marriage. Property purchased with the separate
funds of a spouse remain that spouse's separate property. A business owned by
one spouse before the marriage remains his or her separate property during the
marriage, although a portion of it may be considered community property if the
business increased in value during the marriage or both spouses worked at it.
If separate property is commingled with community property during the
marriage, it may become community property, either in part or entirely,
depending on the circumstances.
Property purchased with a combination of separate and community
funds is part community and part separate property, so long as a spouse is
able to show that some separate funds were used. Separate property mixed
together with community property generally becomes community
Who gets to stay in
If children are involved, the parent who spends the most time with the kids,
or who provides their primary care, usually remains in the marital home with
them. If you don't have children and the house is the separate property of just
one spouse, that spouse has the legal right to ask the other to leave.
If, however, you don't have children and you own the house together, this
question gets tricky. Neither of you has a legal right to kick the other out.
You can request that the other person leave, but he or she doesn't have to. If
you and your spouse don't come to a decision, the court will decide for you
during divorce proceedings or earlier, if you ask for a temporary order on the
If your spouse changes the locks or somehow prevents you from entering the
home, you can call the police. The police will probably direct your spouse to
open the door and let you back in. When you both own the home, the only time you
can get your spouse to leave is if your spouse has committed domestic violence
and a judge grants a restraining order.
Whatever you do, do not claim domestic violence has occured just to get
your spouse removed from the home. (Some people have resorted to this extreme
tactic.) Once a judge realizes this has occurred, the party claiming
violence may be asked to vacate the home and the judge may be biased againt him
or her during future negotiations. If you believe you are a victim of
domestic violence, but are not sure, go to the Yellow Pages and call your local
domestic violence hotline.
Child Support Payment FAQ
Answers to commonly asked questions about child support
a father who never married the mother still required to pay child
a stepparent obligated to financially support his or her stepchildren?
I have to pay child support if my ex keeps me away from my kids?
long must parents support their children?
fathers have the same right to child support as mothers?
Is a father who never
married the mother still required to pay child support?
Anyone who's determined to be a child's parent is responsible for supporting
the child. Many unmarried fathers acknowledge paternity by signing a
voluntary declaration of paternity at the time of the child's birth or soon
thereafter; some are determined to be parents after a paternity suit is filed
and genetic testing establishes parentage. It's also possible for a man who
never married his child's mother to be presumed to be the father if he
welcomes the child into his home and openly holds the child out as his own.
Is a stepparent
obligated to financially support his or her stepchildren?
No, a stepparent is never obligated to support stepchildren unless the
stepparent legally adopts the children.
Do I have to pay
child support if my ex keeps me away from my kids?
Yes. Child support should not be confused with custody and visitation. Every
parent has an obligation to support his or her children. With one narrow
exception, no state allows a parent to withhold support because of disputes over
visitation. The exception? If the custodial parent disappears for a lengthy
period so that no visitation is possible, a few courts have ruled that the
noncustodial parent's duty to pay child support may be considered temporarily
No matter what the circumstances, if you believe that your ex is interfering
with your visitation rights, the appropriate remedy is to go back to court to
have your rights enforced rather than to stop making support payments.
How long must parents
support their children?
Parents must support a child until:
- the child reaches the age of majority (and sometimes longer if the child
has special needs or is in college)
- the child is on active military duty
- the parents' rights and responsibilities are terminated (for example, when
a child is adopted), or
- the child has been declared emancipated by a court. (Emancipation can
occur when a minor has demonstrated freedom from parental control or support
and an ability to be self-supporting.)
Do fathers have the
same right to child support as mothers?
Yes. If you're a father with custody, you have the right to ask for child
support. Each parent has a duty to support his or her children, and that duty
doesn't discriminate between genders.