The red glow of Valentine’s Day love and good feeling has faded into the gray of a late winter’s day, and we can look at Kim and Kanye’s (now known as Ye)divorce for insights into the estate planning practices of the rich and famous as Cupid now takes aim at Kim and Pete Davidson (most recently of Staten Island). Recently, Ye made several demands regarding the rights and responsibilities of each party’s estate in the event of the death of the other. Kim declined. Her response indicates that the couple’s pre-nup put many safeguards in place to protect their respective estates in the event of the death of one of them during their divorce proceedings. That appears to have been a useful strategy because it offers protection to the assets of one of the marital parties in the event of his or her death. For example, imagine a situation where you are going through a bitter divorce without a prenup in place and you are the more well-off party financially. Now suppose you die unexpectedly. Who inherits your assets? The answer to this question is multi-faceted and depends on a lot of factors. It does not have to, though. With a prenuptial agreement and a solid estate plan in place, you can protect your assets and make sure that they are directed in the manner that you want. Both Kim and Ye mentioned Trusts that they had created together and potential issues with those assets. However, Kim did not seem concerned and mentioned that the prenuptial agreement governed the division of any assets held in Trust. This is speculative on my part, I admit, because I have seen neither the prenuptial agreement or their Trust documents. That in itself should tell you something. Trust documents are private. And, for the most part, prenuptial agreements are too. So, we’re left speculating, which may not be satisfying looking in from the outside. One thing is pretty certain. Two very wealthy people married with what appears to be a pretty airtight prenuptial agreement that governs almost everything in the couple’s respective lives.
In the immigration realm, people have all of the experiences that Kim and Ye are experiencing even though they do not share the same type of wealth. In fact, their situations are often made more complex by the fact that one member of the couple has conditional residency (a conditional green card) by virtue of the filing of a petition by a US citizen spouse. Questions of money often take a back seat to questions of the status of the non-US citizen spouse if the couple divorces prior to the removal of conditions. Why is this such a big issue? A little background: when a couple has been married for less than two years and one party in the couple has applied for a green card, in all likelihood the status will be “conditional.” That means that in two years the green card holder has to ask USCIS to remove the conditions on their residence. There is an interview here the couple needs to show they have a bona fide marriage and intend to spend their lives together.
If a couple splits up during the period where his or her spouse’s status is conditional, it can be problematic because it becomes harder for the immigrant spouse to demonstrate that the marriage was not a sham. Fortunately, a waiver is available in certain circumstances if a non-citizen spouse can prove they entered into the marriage in good faith and intended to spend their life with the US citizen spouse. To the critic it may sound too easy, but the law is designed this way so that victims of verbal or physical abuse are not trapped in a dangerous situation. Sometimes, angry or abusive US citizen spouses will use the threat of refusing to cooperate in a non-citizen spouse’s immigration case as a form of manipulation. There are many variations of this situation. They are complex and difficult. If you are in a marriage like one I have described it is important to talk to an experienced immigration attorney to evaluate your options. The stakes and the emotions are too high to ignore.