What will happen to her?

[michaelt]

My neighbor is here on K-1 visa. She is 65, husband approximately 70ish. Married in June 07. Biometrics in Sept 07. She knows nothing about green card status. Husband is terminal and perhaps has only a couple of months to live. Treats her awful. Had her sign marriage agreement stipulating that she agrees to marry under the following conditions: "She is not entitled to any of his assets or property". "She is not to question his comings and goings". "She is aware of his poor health, and will take care of him until he dies". And finally, that "She understands all that this agreement says, and does not need Chinese translation".

She has seen his will, and she is not mentioned anywhere.

Perhaps he is testing her and trying to see if she truly loves and cares for him? Beats me. What do you all think? Can a husband NOT have to provide for his wife? Seems awful to me! Personally, I do not think his "lack of Chinese translation" was very wise on his part? If lawyer helped him, I think lawyer was negligent. Can this total lack of caring for his wife when he dies be binding in the courts? You only need 1 minute of talking to her to hear her lack of English understanding. I think courts would laugh at agreement. Seems to me, any good judge would toss marriage agreement? I think the best I could do is help her follow up on green card and pay to fly her to her niece in California. I told her I would ask you all.

Any thoughts?

[georgeandli]

I would think an attorney would be a better move than the niece, at least now. Doesn't the prenup have to be witnessed and noterized?

[LeeFisher3]

The document doesn't sound like it would stand in a court, but she needs to be cautious because the USCIS is not a court.

 

There are two issues here, her immigration status and her status as an heir to her husbands estate.

 

First the immigration status:

 

Her

AOS

is dependent on her marriage and apparently the paperwork has been filed and moving through the system. In the best of all worlds she will receive her green card prior to his death otherwise she could be caught in a difficult position.

 

There is a grey area in the law for the

K-1

in the event of the death of their spouse before

AOS

is complete. She

can

adjust status, but the

USCIS

could make it more difficult. At that time she would need an attorney to work with her on the

AOS

.

 

If things get really tough, the document he had her sign might be able to be used by an attorney to show that she entered the marriage in good faith as well as prove abuse.

 

As for her status as an heir

Hopefully, the will was created before the marriage, which does not take into account the marriage. In that case she has full spousal rights.

 

She should quietly have an attorney look at this document, if what you have stated is the entire content then it is probably invalid concerning the will as it requires her to care for him until his death without any form of compensation. Sounds like a sea lawyer trick to get free hospice and the lack of translation makes it questionable.

 

She could easily claim she didn't understand it and did

so

because her husband was having her sign papers for the green card and said she needed to sign it.

 

She should get some legal advice, but without the knowledge of her husband.

[Randy W]

It's been argued successfully that even a divorced K-1 should be able to adjust status - the law stipulates only that they marry in good faith.

 

Check out the I-360 form for the widow of a US Citizen

 

Seems to me that she could be considered abused just on the basis of that "comings and goings" clause in the will - have a lawyer look at it.

Edited April 19, 2008 by Randy W (see edit history)

[michaelt]

I agree with all of you and thank you for your input. I was actually quite relieved when I read marriage agreement stating "no Chinese translation needed". How silly of him....should have been translated and should have been witnessed and signed by notary, in my way of thinking. Yes, I also think she will need legal council. A bit beyond my means, but I will not sit by and watch her get hurt. Yes, free hospice...my thoughts exactly...although hospice IS free?, I still think he may not have had her best interests in mind. On the flip-side, my wife thinks he may just be testing her and seeing if she cares for him and not just here for green card and estate.

What about his Social Security? Could she be entitled?

I really do hate the ugly side of how the K-1 process can happen, and I will do all that I can to help her. She is my wife's friend, and has been comforting to my wife since my wife's arrival.

Thank you all!!!

Edited April 19, 2008 by michaelt (see edit history)

[C4Racer]

A good lawyer could trash this prenup agreement, simply because of the clause about not needing to be translated into Chinese. It could be argued that she thought she understood, but did not completely understand the full implications. This clause is much like a disclaimer statement in a warranty. You can add disclaimers, but they can be thrown out in court as invaild if they try to disclaim the basic use of the product.

 

Her green card can be issued after his death if she can prove she entered into the marriage in good faith. If she leaves the home now, this could reflect negatively on this issue.

 

I agree with everyone else. Time to stay put a get a lawyer.

[michaelt]

A good lawyer could trash this prenup agreement, simply because of the clause about not needing to be translated into Chinese. It could be argued that she thought she understood, but did not completely understand the full implications. This clause is much like a disclaimer statement in a warranty. You can add disclaimers, but they can be thrown out in court as invaild if they try to disclaim the basic use of the product.

 

Her green card can be issued after his death if she can prove she entered into the marriage in good faith. If she leaves the home now, this could reflect negatively on this issue.

 

I agree with everyone else. Time to stay put a get a lawyer.

Thank you...agree on all. Any thoughts on Social Security? Isn't she entitled to his when he dies?

[C4Racer]

A good lawyer could trash this prenup agreement, simply because of the clause about not needing to be translated into Chinese. It could be argued that she thought she understood, but did not completely understand the full implications. This clause is much like a disclaimer statement in a warranty. You can add disclaimers, but they can be thrown out in court as invaild if they try to disclaim the basic use of the product.

 

Her green card can be issued after his death if she can prove she entered into the marriage in good faith. If she leaves the home now, this could reflect negatively on this issue.

 

I agree with everyone else. Time to stay put a get a lawyer.

Thank you...agree on all. Any thoughts on Social Security? Isn't she entitled to his when he dies?

 

I believe you are correct. I don't see any conditions stating anything about length on the marriage. Here is a few links to who qualifies.

 

http://www.ssa.gov/pubs/10084.html

http://www.ssa.gov/ww&os2.htm

[Sebastian]

The document she signed MIGHT be a prenuptial agreement, but the usage of prenuptial agreements varies from state to state, as well as 'survivor rights' after death, and 'spousal /survivor rights' after death.

 

But - if the prenuptial agreement wasn't notarized, she stands a better chance of having it totally thrown out, should it be challenged by his other heirs.

 

Others mention 'time for an attorney', and I agree with that, but -

she can find out her own status with USCIS. She has her passport with her K-1 VISA in it, right? The A number there is useful when she calls USCIS to check for 'current AOS status'.

 

Good Luck...

[yuehan123]

There are time limits. However, she seems to have met them. I prefer the question and answer section to the booklets themselves.

 

http://ssa-custhelp.ssa.gov/cgi-bin/ssa.cf...amp;p_topview=1

 

"Question: How long must I be married to collect benefits when a spouse dies?

Answer: Generally, a person can qualify for widow's or widower's benefits if he or she was married to the deceased worker for at least nine months just before the worker died." Of course, there is a presumption that the 'worker' (husband) is even eligible for Social Security.

 

By the way, in the case of divorce, the limit is ten years of marriage, with other conditions, of course.

 

"Question: How does a divorced spouse qualify for benefits?

Answer: A person can receive benefits as a divorced spouse on a former spouse¡¯s Social Security record if he or she:

 

* was married to the former spouse for at least 10 years;

* is at least age 62 years old;

* is unmarried;

* is not entitled to a higher Social Security benefit on his or her own record."

[Randy W]

If I remember correctly, I think she would lose her benefits if she were to move back to China, however.

[LeeFisher3]

If I remember correctly, I think she would lose her benefits if she were to move back to China, however.

There is a 50% reduction in benefits for a surviving LPR spouse living outside of the US.

[michaelt]

The document she signed MIGHT be a prenuptial agreement, but the usage of prenuptial agreements varies from state to state, as well as 'survivor rights' after death, and 'spousal /survivor rights' after death.

 

But - if the prenuptial agreement wasn't notarized, she stands a better chance of having it totally thrown out, should it be challenged by his other heirs.

 

Others mention 'time for an attorney', and I agree with that, but -

she can find out her own status with USCIS. She has her passport with her K-1 VISA in it, right? The A number there is useful when she calls USCIS to check for 'current AOS status'.

 

Good Luck...

Yes, plan on doing that for her when we register with USCIS and submit Case Number. Abit tough to do since her English is limited and I am not her representative.

Edited April 19, 2008 by michaelt (see edit history)

[NY-Viking]

Regarding the prenup and the will, no matter when it was all done, she is still entitled to a spousal share of the deceased spouse estate PROVIDED of course, that they are married when he dies. She will have to contest the will, and certain things (like life insurance) don't go through probate, but a spouse can't be cut out of their spouse's will entirely. It varies from state to state, but entitlement is usually around 1/3 of the deceased spouse's estate. She should talk with a CA attorney who practices in that field.

[pkfops]

Let the bastard die.

 

She'll get her $$$$