Differences between an American marriage contract and a Russian one

In this note we will compare the legislative regulation of marriage contracts in Russia and the USA. Let us immediately note that American legislation in this part varies depending on the state.

Business is increasingly international, and marital relationships are following suit. The property of a modern entrepreneur can be located all over the world. In turn, all property and income that are acquired during marriage are, as a general rule, the joint property of the spouses. To protect both family and business, many people resort to prenuptial agreements.

The Family Code of the Russian Federation (“ RF FC ”) allows partners to choose the law applicable to their marriage contract in the event that such spouses do not have a common citizenship or common place of residence. If the marriage contract does not contain a clause on the applicable law, it may be governed by the law of the country in which they have a joint residence.

Next, we will look at the main differences in the regulation of marriage contracts under American and Russian law, and also give some advice on concluding marriage contracts in the USA.

Why do you need a marriage contract?

In Russia, spouses can change for themselves the general rule on the regime of joint ownership, provided for in Art. 34 of the RF IC, and distribute the property acquired during the marriage in the way that seems reasonable and fair to them.

In the United States, such an act is the model Uniform Premarital and Marital Agreements Act (“ UPAA ”), adopted in 27 states, as well as individual state laws. The UPAA provides only a general framework of regulation for a certain part of the states, while the laws of the states themselves provide more detailed regulation and may differ significantly from each other.

Thus, even the legal property regime for spouses varies from state to state. For example, in the state of Idaho, all property that spouses acquire after marriage becomes joint property, and upon divorce, all assets and liabilities are divided equally. This approach is common in only 9 states and is called “community property” - jointly acquired property. In other US states, the “common law property” approach is used, which establishes a regime of separate property according to a general rule. That is, what was acquired by each partner during the marriage belongs exclusively to him.

Similarities in the regulation of marriage contracts in Russia and the USA

Although local laws may vary, in all 50 states the agreement must be in writing and meet the following requirements:

the agreement must be signed before marriage and the marriage must take place;
the agreement cannot cover aspects contrary to public policy;
the agreement must meet the standards of fairness.

Similarly, the RF IC indicates that it is mandatory to comply with the written form of the marriage contract, but also requires that all marriage contracts be executed by a notary.

Although the regulation of marriage contracts in Russia and the United States differs, many aspects of regulation are the same. Thus, neither in Russia nor in the United States can provisions on custody and financial support of a child after a divorce be included in a marriage contract. These issues are resolved by the court, as they relate to the rights of the child, not the parents. Alimony is the right of the child, not the right of the parents, therefore parents cannot refuse to implement the child’s guarantees to receive alimony. Under some state laws (such as Arizona), this is against public policy. Consequently, the court will not enforce a prenuptial agreement that predetermines the child's rearing time, the authority to make legal decisions regarding the child, or the regulation of child support issues.

California law is free of contract and allows spousal support to be waived or limited until the provision is found to be unconscionable (unreasonably unfair). It is difficult to say exactly what the court will consider “unconscionable.” For example, this could be a prenuptial agreement that contains a complete prohibition on spousal support if one of the spouses under the contract has significantly more assets and income.

If there is significant disparity in the distribution of assets between the parties, then rather than waiving spousal support altogether, restrictions on the amount and duration of support may be considered.

As for the possibility and procedure for changing the marriage contract, the rules in this case do not differ. According to Art. 43 of the RF IC, the parties have the right to change the marriage contract at any time by mutual consent. In the same way, according to Art. 32-922 of Chapter 9 of Title 32 of the Idaho Statutes, after marriage, a prenuptial agreement may be modified or canceled by written agreement by mutual consent of both partners.

The procedure for obtaining American citizenship through marriage in the USA

You can obtain American citizenship by marriage after three years of living together with your spouse.

True, for this you will need to have a Green Card and stay in the United States for a total of at least 1.5 years.

The foreigner must reside in the state where the application for citizenship will be submitted for at least 3 months.

If all these requirements are met, the person applying for citizenship will be allowed to take the exam. He will have to take an English language test and answer questions about the political and economic structure of the United States. You will also need to take an oath of allegiance to America.

A big temptation is to enter into a fictitious marriage in order to obtain citizenship. But it is worth considering that deception can forever close the door to the American dream. Since the migration service carefully checks all documents, it looks to see whether the union was truly concluded for love, and not for calculation. After all, this kind of fraud here is a criminal offense and can be punishable by imprisonment.

Who can enter into a marriage contract and when?

A marriage contract in Russia can be concluded not only by spouses, but also by persons entering into marriage. If a marriage contract is concluded before marriage, it acquires legal force at the time of state registration of the marriage. However, regardless of the time of conclusion of such an agreement, it is called a prenuptial agreement.

American law separates agreements entered into before and after marriage. The concept of “nuptial agreement” in US law includes two concepts: prenuptial agreement and postnuptial agreement. Moreover, these two types of agreements differ only in the time of their conclusion. Thus, in a prenuptial agreement, the parties may be persons who are just about to get married, and in a postnuptial agreement, the parties can be spouses.

Formally, the difference between a prenuptial agreement and a postnuptial agreement lies only in the date of signing. But in practice, postnuptial agreements are challenged in the courts much more often than prenuptial agreements. For example, courts in California and Utah have less confidence and more requirements for postnuptial agreements. Such agreements are studied by the courts especially scrupulously. The reason for this is the fact that, according to the laws of these states, a fiduciary relationship is established between spouses, but not between those who are just about to get married. Consequently, the courts always study all assets and liabilities much more thoroughly when dividing property under prenuptial agreements concluded during marriage.

There is no similar distinction in Russian legislation, and regardless of the moment of conclusion, such an agreement will be called a marriage contract and will have the same legal force. In accordance with paragraph 1 of Art. 41 of the RF IC, a marriage contract can be concluded both before the state registration of a marriage, and at any time during the marriage. A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage. That is, in Russian legislation there are no time restrictions for concluding a marriage contract.

All state laws require that a prenup be signed before marriage. Some states require that the agreement be signed at least 24 hours before the wedding. The closer to marriage a prenup is signed, the more likely it is to be challenged. For example, in the case of Fletcher v. Fletcher The Ohio Supreme Court invalidated a prenuptial agreement that was signed less than 24 hours before the wedding because it considered such a conclusion a form of blackmail. The court indicated that concluding a marriage contract in less than 24 hours creates a situation of coercion - either you enter into a marriage contract, or there will be no wedding, which means that such a contract must be declared invalid.

Some states also set longer deadlines, in violation of which a last-minute prenuptial agreement may be invalidated. California law requires a seven-day period between the date the final draft of the prenuptial agreement is delivered to the other party and the date the final draft is signed.

Thus, in one of the cases, the parties violated this legal requirement, and the marriage contract was declared invalid.

Where to contact?

Before registering a marriage, you must obtain a license (American Marriage License).

The method of obtaining it depends on the state's capabilities.

As a rule, the application form for a marriage license can be filled out online or at one of the municipal offices (Registrar-Recorder/County Clerk).

The questionnaire includes the following information: full name, presence and details of previous marriages (if any), date and place of birth, parents’ details (name, place of birth and even mother’s maiden name). At this stage, the issue of a possible change of the premarital surname is also decided.

The cost of a marriage license depends on the type and state. For example, in California there are two types of license: public and confidential. A public Marriage License will cost $90, and a Confidential Marriage License will cost $85. The difference is that the confidential license information is removed from the public domain.

The license is valid only in the state that issued it. In other words, having received a license in Washington, you cannot get married in Las Vegas using it. But there are no territorial restrictions: residents of any state can get married anywhere in America if they have the appropriate license.

From the moment they receive a marriage license, future spouses have a certain period of time to conduct the ceremony. Its duration depends on the state: in California it is given 90 days, in Oklahoma - 10 days, in New York state - 60 days, in Nevada - exactly a year. Missing this deadline will invalidate all previously submitted data and the procedure must be repeated. Those wishing to get married in the states of Georgia, New Mexico, Mississippi, the District of Columbia or South Carolina do not have to worry: in their territory, a marriage license is issued indefinitely.

Additionally, some states have a “cooling off time”, i.e. A couple of days after receiving a license, a marriage cannot be registered. For example, in Pennsylvania this period is 3 days.

Upon receipt of a marriage license, you can apply for final legalization of the relationship:

to the magistrate;
in church;
to the city hall;
to any person who has completed special courses and received the right to marry people;
to one of the Registrar-Recorder/County Clerk offices.

It all depends on the imagination, desire and financial capabilities of the future spouses. For example, a “simple” civil ceremony at the Registrar-Recorder/County Clerk will cost an additional $35 in California.

At the end of the ceremony (regardless of its type), the following is entered in the Marriage Certificate: the date and place of registration, the name of the minister (in Russian - registrar), signatures of witnesses.

The presence of witnesses is usually mandatory (if there are no witnesses, the minister’s employees will act as witnesses). The exception is cases of confidential registration of relationships. The original certificate is handed over at the place where it was received, and newly minted spouses are given a copy (for a fee).

When thinking about changing your surname, you should approach it very responsibly, since any changes in identification data (whether it is the husband’s surname or a double surname) will entail expenses associated with replacing documents. You will have to change everything - from your passport to your electricity bills.

Both spouses are American citizens

To obtain a Marriage License, US citizens must provide:

birth certificate. If this document is of foreign origin, a translation with a date, signature and a note on the compliance of the translation is attached to it. In other words, a certified translator must translate. Notarization, as in Russia, is not required;
Any form of identification that has a photo (this could be a passport, state ID, or driver's license). The seafarer's passport, despite its recognition as an identity document, is not suitable for marriage matters;
Social Security number (SSN). If it’s not there, it’s not scary;
documents confirming the termination of all previous marriages. Moreover, not only a certificate of divorce must be provided, but also a certificate of death or recognition of the marriage as fictitious. In some states, a vow of absence from other family is sufficient (California). In New York, the rules are stricter - you must indicate where your ex-spouse lives after the divorce.

The list of documents is quite conditional. Some states require, for example, a criminal record check. A license and passports are enough to conduct a marriage ceremony.

One of the spouses is a foreigner

If one of the future spouses has citizenship of another country and is sent to the United States to register marriage relations, then the citizen spouse must send an invitation.

The US Embassy/Consulate issues a K-1 fiancé (bride) visa.

From the moment of receiving a visa, future spouses have 3 months to legalize their relationship. After the specified period, if the marriage relationship has not been formalized, the visa loses its validity and the bride (groom) must leave the country. And, conversely, after marriage, the newly-made foreign spouse becomes entitled to a Green Card.

If the future non-citizen spouse is already in the country on any other visa, the marriage procedure is no different from the generally established one.

The package of documents provided for marriage registration is identical to that already indicated. The only point is that the newlywed foreigner must provide a foreign passport!

The US Immigration Service is very strict about marriages between citizens and foreigners. It must be concluded solely for love, otherwise such marriage relations are considered a violation of the law. A foreign citizen caught in an arranged marriage is subject to immediate deportation and a ban on further visits to the country.

What to do if you arrived on a short-term visa?

Is it possible to marry a US citizen and obtain citizenship on a short-term visa? Undoubtedly. But then get ready to prove that initially you had no such intentions, everything arose spontaneously, and you no longer want to leave.

Before the wedding, you will definitely need to obtain permission from the county administration to register. To do this, submit an application, you can even do it online, attach documents confirming your identity, and pay the state fee. Its size depends on the state - from tens to hundreds of dollars. The permit is issued after you prove that you are not in any other relationship. In some states they will take your word for it, in others - be prepared not only to present documents, but also to tell where your ex (ex) now lives. Each condition is specified in the municipality.

Attention! All documents must be translated into English and notarized.

What can be included in the terms of a marriage contract?

Russian legislation does not allow the non-property rights of spouses to be regulated by a marriage contract, since, in the opinion of the Russian legislator, otherwise would limit their legal capacity.

A marriage contract in Russia can regulate the following aspects:

regime of joint, shared or separate ownership of all property of spouses, its individual types or the property of each of the spouses;
the rights of spouses in relation to a business owned by one or both spouses in the event of divorce;
rights and obligations regarding content;
ways to share in each other's income;
the procedure for spouses to bear family expenses;
property that will be transferred to each spouse in the event of divorce;
other provisions that relate to the property relations of spouses.

There is no such restriction in American law. US law establishes only general prohibitions on specific conditions, for example, restrictions on children's rights to support. That is, an American marriage contract may contain various non-property rights and obligations of spouses.

For example, Article 1612 of the California Uniform Prenuptial Agreement Law states that the parties to a prenuptial agreement may stipulate in the agreement, among other things, “personal rights and obligations, without violating public policy or the law providing for criminal penalties; making a will, trust, or other agreement.” Moreover, Texas law suggests that a prenuptial agreement may provide for the consequences of adultery.

Form of marriage contract

According to paragraph 2 of Art. 41 of the RF IC, a marriage contract is concluded in writing and is subject to notarization.

Under US law, a prenuptial agreement must be in writing, but there is no requirement for notarization. For example, for a prenuptial agreement to be valid within the meaning of the UPAA, it must be in writing and signed by both parties.

In addition, a prenuptial agreement must be signed after each partner has consulted with an independent attorney. For example, in the case of Tenneboe v. Tenneboe, one of the key roles in invalidating the agreement was played by the fact that when concluding the marriage contract, the spouse did not have his own lawyer. This was regarded by the court as the spouse’s lack of opportunity to receive advice about the rights and obligations acquired by him at the time of concluding the marriage contract. However, this condition is not mandatory, and if the spouses are 100% sure that one lawyer between them is enough for them, they may not involve a second lawyer for a separate consultation. It must be borne in mind that in the event of a challenge to the marriage contract, the fact that there are no separate lawyers for each of the parties will be considered by the court as an argument against the validity of the marriage contract, even if the parties agreed to this voluntarily.

Some states have more stringent requirements for the form of a prenuptial agreement. For example, Minnesota law requires that each party's signature be witnessed by two people and that the party swear and affirm their signature before a notary public.

Invalidity of the marriage contract

According to Art. 44 of the RF IC, a marriage contract may be declared invalid by the court. The conditions for the invalidity of a marriage contract are practically similar to the conditions for the invalidity of any civil law transaction. The reasons may be:

conclusion of a marriage contract by incapacitated persons;
forcing any of the parties to enter into a marriage contract under threat, using physical or psychological violence or using blackmail;
lack of notarization of the marriage contract;
the presence in the marriage contract of conditions that contradict the legislation of the Russian Federation.

Section 9 of the UPAA states that a premarital or marital agreement is unenforceable if a party proves that:

her consent to conclude a marriage contract was forced or was the result of coercion;
the party did not have access to legal assistance;
Before signing the agreement, the party did not receive adequate information about the actual volume of assets and liabilities of the spouse.

Moreover, the same section of the UPAA notes that a party has sufficient information about finances if it:

obtains a reasonably accurate description and good faith estimate of the value of the other party’s property, liabilities and income;
expressly waives, in a separate signed entry, the right to disclose financial information beyond the disclosure provided; or
has sufficient and reasonable grounds for obtaining such information.

If, when signing a contract in the United States, only one party had a lawyer, such a contract can be challenged during a divorce. The court may declare the contract invalid because the party without a lawyer could not properly evaluate the contract and defend its rights.

What should not be included in a prenuptial agreement

According to Art. 42 of the RF IC, unlike American legislation, a marriage contract cannot limit the legal capacity or capacity of spouses, nor regulate personal non-property relations between spouses.

At the same time Art. 42 of the RF IC contains conditions similar to American regulation that are unacceptable for inclusion in a marriage contract:

the impossibility of restricting the right to go to court to protect one’s rights in a contract;
regulation of the rights and obligations of spouses in relation to children;
placing one of the spouses in an extremely unfavorable position.

You can get more detailed information about the conditions that should not be included in a prenuptial agreement from a guide to concluding prenuptial agreements.

In the United States, attempts to regulate certain nuances in a prenuptial agreement may not be feasible if they are contrary to public policy. For example, any restrictions on child support may be voided in violation of public policy because they affect the rights of individuals who were not parties to the agreement. Provisions regarding the limitation of child custody are also generally unenforceable.

Transgender and eugenic marriages

In America, not only traditional couples register relationships. Thus, registration of same-sex marriages is allowed throughout the United States. Foreigners also come to formalize the union.

For example, in California, any couple can become a family. The main thing is that both spouses are over 18 years old.

To formalize the relationship, lovers only need to obtain a marriage license, pay a fee and bring at least one witness to the ceremony.

Interracial marriages in the United States have also become commonplace for a long time. If back in the 50s no more than 5% of the population accepted such unions, today this figure has increased to almost 90%. A black American can easily marry either his compatriot or a foreigner.

Grounds for invalidity of a marriage contract

As stated above, the grounds for the invalidity of a marriage contract are similar to the general civil grounds for the invalidity of transactions. At the same time, the RF IC contains a special basis. Thus, a marriage contract may be declared invalid if it puts one of the spouses in an extremely unfavorable position, for example, it completely deprives one of the parties to the contract of property jointly owned by the spouses.

American law also requires that the terms of a prenuptial agreement be fair. While standards of substantive fairness may be vague, one thing is certain: a prenuptial agreement is not unenforceable simply because it provides for less than what the law provides. In fact, ensuring a different outcome than the law would provide is most often the end in itself of concluding an agreement. In this case, the marriage contract is not invalid.

Consequences of invalidity of a marriage contract

As a general rule, the consequence of the invalidity of a transaction is the application of bilateral restitution (clause 1 of Article 167 of the Civil Code of the Russian Federation). This rule also applies to a marriage contract. That is, each party to the marriage contract is obliged to return to the other everything received under it or compensate for the cost.

If the marriage contract is a feigned or imaginary transaction, then the rules of the transaction that the parties actually had in mind can be applied to such terms of the contract (Article 170 of the Civil Code of the Russian Federation).

Under Section 8 of the UPAA, if a marriage is declared void, the prenuptial agreement or prenuptial agreement is enforceable to the extent necessary to avoid an unfair result. Thus, American law provides for the enforcement of a marriage contract even in cases where the marriage is invalid. However, such enforcement will occur when the parties have been married for a long time and one of the parties reasonably relied on the terms of the prenuptial agreement during the marriage.

Fictitious marriage

In the 1980s, a very common immigration route was through fictitious marriage to obtain US citizenship. To limit the flow of such immigrants, the government has introduced strict measures. The first green card is now issued for two years. You can apply for naturalization in three. If it turns out that an American knowingly committed a crime, he faces up to 5 years in prison and a considerable fine. For a foreigner – imprisonment for up to 1 year, deportation.

The “cost” of such services is quite considerable. On the Internet you can regularly find advertisements “Fictitious marriage to obtain US citizenship price.” The fee is substantial - $15-45 thousand depending on the list of services. Weigh up what you are risking - the illusory opportunity to become a resident or receive a lifelong entry ban.

If within five years the fictitious partner declares that the relationship was conditional, the green card and even citizenship will be invalidated.

How to establish responsibility for treason

Despite the fact that a prenuptial agreement is essentially the same legal structure in different jurisdictions, there are quite a few differences. The most important difference is the ability to regulate the personal non-property rights of a partner. A particularly sensitive point is the possibility of defining the consequences of infidelity in the marriage contract.

The concept of cheating itself is difficult to define because people have different perceptions of what might be appropriate and everyone has different personal boundaries. In addition to the obvious sexual relationship, flirting, communication, tactile contact and other actions can also be considered cheating, that is, there is a wide range of possible unacceptable behavior of a partner. For those who still decide to include such a condition in the prenuptial agreement, American lawyers advise discussing general definitions with your partner before consulting with a lawyer. An attorney can help with specific language in a prenuptial agreement or separation agreement.

For Russia, the possibility of such regulation is not provided, and the inclusion of a condition on adultery will entail the invalidity of the marriage contract. And if such conditions seem alien to the Russian legal order, in some jurisdictions, including in the post-Soviet space, they are widely practiced. For example, in Belarus, spouses can include a condition in the marriage contract under which, in the event of infidelity of one of the spouses, a certain part of the property will become the property of the other spouse.

Thus, by their legal nature, marriage contracts in Russia and the United States are not fundamentally different from each other, but at the same time they have different grounds for challenge and even the subject of regulation. In both countries, a prenuptial agreement is a voluntary agreement between spouses or persons intending to marry. The most significant difference is that in the United States, a marriage contract can regulate the personal non-property relations of spouses.

About a marriage certificate with two citizenships

US citizens are not prohibited from having dual citizenship.

Therefore, here you can often meet a person with two passports.

But, due to the fact that, upon receiving American citizenship, a person swears an oath of allegiance to the country, he essentially cannot use a second passport (the US authorities do not welcome this, and for this you can even lose citizenship), the marriage in any case will take place according to American ID card.