Marrying And Moving To America

[scottydel]

Hi,

37-year-old American here. Have Thai girlfriend of 5 years, and 4-year-old son together. We were married in 2007 with only a ceremony, no certificate. Now we are moving down the immigration visa route, and going to make our marriage legal which is a requirement of the visa.

My question is, if we drafted a prenup here in Thailand before our marriage certificate was issued, would it be valid in the USA? We are planning to move to OH.

Girlfriend has shown zero signs of being a gold-digger. She is not a bar girl, but comes from a family if Malaysian immigrants living in a fishing village in the south. In the years we've been together, I've been asked to buy two things: a refridgerator and a toilet for her parents home, because they've never had either. But part of me just says CYA because who knows what could happen 5, 10 or even 20 years down the road.

My main concern is US law. I don't think my g/f would come after me for money if we were divorced, but under US law, if we divorced she would be entitled to half of everything I've earned since the marriage. I'm giving her the opportunity to become a US citizen and earn more money than she ever could in Thailand. It think it's silly on top of that to give her half of everything I've made. So I'm trying to avoid being stuck in that scenario.

If we got a divorce in the USA would this 50/50 ruling be automatic, and how would a prenup crafted in Thailand hold up in Ohio?

If we got a divorce in Thailand at the amphur, and both parties signed, would I then still be subject to dealing with a US court divorce settlement?

And please no "if you want a prenup don't get married" nonsense. There is nothing wrong with being careful and protecting your assets. People can change over time, and do irrational things. We're all human. I'm a fantastically safe driver, but I still carry auto insurance. Love and money have nothing to do with each other, and prenups make sure that they stay separate!

Thanks,

Scott

[Mario2008]

You can only enter a prenup when you get married (= register the marriage at the amphur). That is the time to enter a prenup. How valid it will be depends on the state you will be living in. Leaving someone totally in the cold is often not accepted. You better ask a lawyer in the US, regarding the state you will be living in, as US laws seems to be your main concern.

If no prenup Thai law would give half of all gains during the marriage, that includes any gains she made and also any debts.

If you divorce in Thailand while living in the US, I think a US court could still be involved and make a different ruling regarding the assets in the US, if the Thai settlement contradicts the law of the state of Ohio.

[scottydel]

Thanks Mario. I have some questions to US lawyers as well, waiting for answers.

Thanks for clarifying the prenup is entered at the amphur the day we register the marriage. Does the prenup have to be drafted by a Thai lawyer, translated, notarized or anything speical prior to when we register the marriage at the amphur? Or is it something that's literally handled on the spot? Do lawyers need to be present at the amphur if we enter a prenup? Any more insight into how that works would be helpful.

I don't want to leave her high and dry of course. I'm going to be the main bread winner and support her and our son (as I've been for the past 5 years), and also give her the opportunity to work in America making 10 x her Thai annual salary, which she can keep or send to Thailand to her parents or siblings if she wants. So maybe instead of a 50/50 split I will give her a lump sum of 100,000 baht or something that's reasonable.

[ProThaiExpat]

A pre-nup agreement is a contract between two people in which they agree how assets of the marriage are to be disposed upon divorce and is often tiered based on the length of the marriage.

Since you definitely plan on living in the US and in a particular state, you would be wise to at least get a form pre-nup for your state off the internet and follow it in drafting your pre-nup in Thailand.

Better yet, do an internet search for a lawyer in Ohio who advertises he does pre-nups and have him draft one for you. I am sure you would have no problem recording it in Thailand, although I was unaware that a recordation of a pre-nup was required in the U.S.

[gregb]

In many states in the US, any prenup can be voided if the woman did not receive appropriate, independent counsel on the consequences of signing that agreement before the marriage. What constitutes appropriate, independent counsel would be up to a court in the US to determine, but a Thai legal firm that didn't understand the rules of the USA would probably not qualify, and certainly no legal counsel at all would be extremely dangerous.

My suggestion would be that you give your fiancee the money to go visit a good international law firm with US lawyers on staff who specialize in family law. You can not pay for this directly, as that might possibly be viewed as her visiting your attorneys. If you are the paying client, then they might not be giving her unbiased information. If she sees these lawyers and pays for them herself, expect them to counsel her NOT to sign the prenup, and explain to her exactly what her rights are under US law. In order to be secure during a divorce in some states in the US, there must be absolutely NO indication that the wife was not COMPLETELY aware of what she was signing and entered into the contract willingly.

I would strongly recommend you visit a US attorney in your planned state of residence first and talk to them about these issues, and what is the likelihood of falling afoul of them during a divorce. From my perspective, I would not count on a Thai prenup to have any standing in the US. A good divorce attorney in the states I think would tear apart a Thai prenup as if it were toilet paper.

[soundman]

Moved to new Marriage and Divorce forum.

[scottydel]

Thanks for the responses and the move to the right forum. Here's what I ended up doing:

Had an OH lawyer draft an OH prenup. It's pretty basic - only 3 pages with lots of space taken up for signatures. Simple list of shared and individual assets and debts, with the minimum amount of legal blabber to basically state what wifey gets if we split, and make sure that she doesn't automatically get 50% of everything I own (and vice versa, in case she ends up winning the mega lotto or something and then we split...I'm entitled to squat!). Had it translated to Thai. Had the English version declare it was governed by the state of OH and an identical document was governed by the Kingdom of Thailand. Conversely, had the Thai version declare it was governed by the Kingdom of Thailand and an identical document was governed by the state of OH. So we'll sign both at the amphur.

If wifey and I ever separate down the road and it's amicable, I think I will be fine. She doesn't inherit any of my debts or retirement funds (debts are currently greater) she gets all of our Thai bank account, and 100,000 baht. She doesn't come from money so this is a nice parting gift, considering I will pay for nearly everything she eats, drinks, smokes, wears, etc (and flights back home) as well as everything for our son. Hopefully I avoid that awful scenario where I also automatically have to hand over 50% of what I'm worth.

But if things get ugly and it's a bitter battle of attorneys, I think it will probably be thrown out in OH. She won't have any legal counsel prior to signing (though she waives those rights while signing...but I don't think that matters), and though my debts are greater than my assets today, I will no doubt be the major bread winner in our marriage and she is entering our marriage with almost zero assets.

As for what would happen on the Thai side of things, I really don't know. I'm focusing on OH, and having something in place for Thailand is nice, but I have no idea if it will hold up.

Honestly, I highly doubt I'll ever have to use this, and if I do I doubt even more that things will be ugly between us. But I feel a little better knowing I at least put something in place in case the future is as unexpected as it sometimes can be!

[bangkokburning]

I was told that there may be issues with it even if written in Thai.

Can be argues that she was "forced" to sign under "duress" - otherwise not go to US, maybe lose the kid to you. If nothing else tie it up in court till you fold.

WOW - good luck for you eh? 15% unemployment and you are back to states, have a job and so flush with cash after paying for all three of you, worrying about what she might take from you.

My brother, no prenup but wife (us native) good job as my brother - Brother got screwed on child support.

Edited September 25, 2011 by bangkokburning

[venturalaw]

Thanks for the responses and the move to the right forum. Here's what I ended up doing:

Had an OH lawyer draft an OH prenup. It's pretty basic - only 3 pages with lots of space taken up for signatures. Simple list of shared and individual assets and debts, with the minimum amount of legal blabber to basically state what wifey gets if we split, and make sure that she doesn't automatically get 50% of everything I own (and vice versa, in case she ends up winning the mega lotto or something and then we split...I'm entitled to squat!). Had it translated to Thai. Had the English version declare it was governed by the state of OH and an identical document was governed by the Kingdom of Thailand. Conversely, had the Thai version declare it was governed by the Kingdom of Thailand and an identical document was governed by the state of OH. So we'll sign both at the amphur.

If wifey and I ever separate down the road and it's amicable, I think I will be fine. She doesn't inherit any of my debts or retirement funds (debts are currently greater) she gets all of our Thai bank account, and 100,000 baht. She doesn't come from money so this is a nice parting gift, considering I will pay for nearly everything she eats, drinks, smokes, wears, etc (and flights back home) as well as everything for our son. Hopefully I avoid that awful scenario where I also automatically have to hand over 50% of what I'm worth.

But if things get ugly and it's a bitter battle of attorneys, I think it will probably be thrown out in OH. She won't have any legal counsel prior to signing (though she waives those rights while signing...but I don't think that matters), and though my debts are greater than my assets today, I will no doubt be the major bread winner in our marriage and she is entering our marriage with almost zero assets.

As for what would happen on the Thai side of things, I really don't know. I'm focusing on OH, and having something in place for Thailand is nice, but I have no idea if it will hold up.

Honestly, I highly doubt I'll ever have to use this, and if I do I doubt even more that things will be ugly between us. But I feel a little better knowing I at least put something in place in case the future is as unexpected as it sometimes can be!

Interesting because basically it is to her advantage, at least initially, that she signs. I assume she has no debt, and as you said very little assets. You said that your debts exceed your assets. Therefore, advantage to her.

If Ohio is a community property State, according to your summary of the prenup, her share of the community will be limited to 100,000 THB, and there will be no spousal support ordered. In California, the support duty owed between spouses for so long as they are married and living together cannot be waived. I do not know Ohio law, so leave it to your Ohio counsel.