Integrity Legal

Posts Tagged ‘Thailand prenup’

28th March 2010

For many Thai-American couples a prenuptial agreement is an effective method of ensuring that bot parties understand the rights, obligations, and responsibilities that marriage entails. The US Embassy in Bangkok, Thailand issues a large number of visas to the fiancees and spouses of American Citizens. As this is the case, one of the ancillary issues regarding US Immigration involves prenuptial agreements as many couples opt to have a Thai Prenuptial Agreement signed prior to a marriage which is used as a basis for a K3 Visa or a CR1 Visa or they opt to have a prenuptial agreement drafted prior to a Thai fiancee’s departure to the USA on a US fiance visa (also known as a K1 visa). That being said, having a prenuptial agreement properly drafted is extremely important as failure to properly draft such an important document could lead to unforeseen problems down the road.

In previous posting on this blog, this author has discussed the importance of having a licensed US attorney act as a representative in US Immigration matters as “visa companies,” “visa agents” and fly by night operations claiming to be either lawyers, attorneys, or both cannot represent clients before the United States Citizenship and Immigration Service (USCIS). With regard to a Thai prenup, one should retain a licensed American attorney to draft a prenuptial agreement if for not other reason than the fact that they are trained in the working of United States law as well as the common law system in general. Unfortunately, those falsely claiming legal credentials are often drafting documents that are insufficient to ensure the security of one’s assets.

The obvious question that many people in Thailand have is: how can I be sure that the person drafting my prenuptial agreement is a lawyer? As with United States Immigration matters, the best way to verify an individual’s credentials is to ask for either a State Supreme Court License, a State Bar Association Membership Card, or a Federal license to practice law in a US Federal jurisdiction. After receiving the individual’s credentials, it may be necessary to check with the Supreme Court or Bar Association to be certain that the individual is an attorney in that jurisdiction.

Prenuptial Agreements are very important documents and they should be carefully drafted by someone with legal acumen. Entrusting something so important to those without credentials is a risky endeavor that will likely not be recognized until long after correspondence with the drafter has terminated.

For further information please see: Prenuptial Agreement Thailand.

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3rd December 2009

Prenuptial Agreements are important instruments both for asset protection and for litigation avoidance. For those who wish to execute a prenuptial agreement in Thailand, the advice of a competent licensed attorney is highly recommended.

Many who are in the process of getting married do not wish to discuss the prospect of a possible marital dissolution. This attitude is similar to those who do not wish to discuss estate planning or Wills because they do not wish to think of their own death. Although an understandable feeling, often dealing with such issues in an open and reasonable manner can put all parties at ease. With regard to prenuptial agreements, there are some formalities which must be dealt with after the marriage has been registered.

For those with a retirement or pension plan, the effects of the Employee Retirement Income Security Act of 1974 (ERISA) can have a major impact upon the Thai Prenuptial Agreement process. As mentioned previously on this blog, and elsewhere, prenuptial agreements need to be properly drafted by a competent attorney. Also, the Thai fiancee signing the agreement should be provided with independent counsel in order to ask questions about the agreement and have all rights, obligations, waivers, and entitlements explained in layman’s terms. Further, if the Thai fiancee is not a native English speaker, then it may be advisable to have a Thai interpreter assist in advising her as to her rights.

That being said, ERISA requires that a further waiver be signed after the marriage is registered or executed. This is due to the fact that only a spouse is entitled to waive rights delegated under ERISA. As ERISA is Federal law it trumps state law pursuant to, among other things, the Supremacy Clause of the United States Constitution. Those with a pension or retirement plan covered under ERISA, should seek experienced legal counsel to explain how their interests can be protected in a prenuptial agreement. Fortunately, their are ERISA waivers which allow the parties to make individualized provisions as to the distribution of pension funds in the event of marital dissolution. That being said, attorney consultation is highly recommended as ERISA can be a very complicated area of law.

As with any premarital agreement, a Thai prenuptial agreement should be signed prior to the marriage. However, Thai prenuptial agreements are registered at the same time as the Thai marriage registration. Therefore, it may be possible to execute an ERISA waiver soon after marriage registration in Thailand.

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20th November 2009

Unfortunately Thailand is a breeding ground for disreputable firms offering drafting services for a Thai prenuptial agreement. One of the telltale signs of such an operation is a so-called American “lawyer,” offering an American Prenuptial agreement for Thai fiancees. The first thing one ought to do when dealing with anyone claiming to be an attorney: ask for their credentials. An actual licensed attorney from the United States should be able to produce a bar card, supreme court license, or US Federal license to practice law.

That being said, there are further issues to remember when drafting a prenuptial agreement. One major formality should be adhered to when creating a prenuptial agreement and failure to adhere to this formality can severely damage a prenuptial agreement’s later enforceability. This important formality is a review with an independent attorney.

A prenuptial agreement, like many legal contracts, requires that all parties understand the agreement at the time that they sign it. In cases where the agreement is with a Thai fiancee, it is wise to have both a Thai version of the agreement and an independent attorney who can review the agreement with the fiancee so that she understands all aspects of the agreement and all of the legal rights and benefits that she is both acquiring and relinquishing by signing the agreement. Having the agreement drawn up by an unlicensed attorney runs the risk of having its provisions later thrown out due to poor draftsmanship. Further, failure to have an independent attorney review the document with the Thai fiancee could result in a court finding that the provisions of the agreement should not be followed because the Thai fiancee did not understand what she was signing when she signed it.

For these reasons, it is highly advisable to retain a licensed attorney to draft a prenuptial agreement in both Thai and English. A legitimate attorney can then refer the Thai fiancee to another licensed independent attorney who can provide an accurate and impartial assessment of the agreement as well as answer any questions that the Thai fiancee might have.

Some couples opt to have their signatures notarized and in Thailand an attorney will likely have access to a Thai notary. If the couple plans to sign the agreement in the United States, then it would be wise to retain the services of a notary in the state where the agreement is signed. A notary must actually witness the signatures of both parties. At American Citizen Services at the US Embassy in Bangkok the consular officers can provide notary services. Although a Thai notary is valid if the agreement is signed in Thailand.

For more information, please see Thailand Prenup.

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8th November 2009

In many cases, those thinking of drafting a Thai prenuptial agreement also ponder the related issue of a Last Will and Testament in Thailand. Although both of these instruments can have an impact upon the distribution of Thai property they should not be viewed as completely complimentary devices as they serve different purposes and the drafting of these documents requires adherence to different sets of rules regarding legal formalities.

A Thai prenuptial agreement is an instrument used for the purpose of pre-designating a property distribution should a marital relationship dissolve. If the underlying marriage is registered at an Amphur office (Civil Registrar’s office) in Thailand, then the Thai prenuptial agreement must be simultaneously registered with the marriage. Failure to simultaneously register the Thai prenup could, and may very likely, result in a Thai court subsequently refusing to take notice of the prenuptial agreement when deciding how the marital estate should be divided.

A Thai will is a testamentary instrument that is used to divide the estate of a Thai or one who has died in Thailand. When drafting a will in Thailand, or in any jurisdiction, one must adhere to certain legal formalities in order to ensure that a court will enforce the provisions of the will itself. When a court divides the estate of the deceased, this process is known as probate and a probate court could throw out an improperly drafted will. This is why retaining the advice of a Thai lawyer may be advisable when drafting a new Thai will.

So-called “spouse election,” statutes should be mentioned when discussing Thai prenuptial agreements and wills for United States Citizens looking to marry Thai nationals. A “spouse election,” statute is a type of legislation that exists in many jurisdictions throughout the United States. Such legislation is designed to curb disinheritance of surviving spouses in wills or other testamentary devices. The result of “spouse election,” statutes in the USA is that the spouse of a deceased person can usually be confident that they will inherit at least 1/3 or 1/2 of the net probate estate (the actual percentage depends upon the state). Such rules are important to note for those drafting a prenuptial agreement because a prenuptial agreement should not be drafted in such a way that its provisions contravene the “spouse election” statute in the state of the US Citizen’s residence. Therefore, it may be wise to consider Wills and Prenuptial agreements as wholly separate instruments and thereby keep each of these instruments free of provisions that stray into the bailiwick of the other.

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