Prenups and Immigration in Florida: Form I-864, K-1 Fiancé(e) Visas and E-2 Couples (2026)
Quick Answer
Can a Florida prenup cancel the sponsor’s Form I-864 support obligation? Do not assume it can. The I-864 is a federal promise: USCIS describes it as “a contract between a sponsor and the U.S. Government,” and its instructions say “Divorce does not end the sponsorship obligation.” In deciding whether the sponsors’ asserted equitable defenses could terminate support, the Eleventh Circuit applied federal law and treated the listed terminating events as exclusive (Belevich v. Thomas, 11th Cir. 2021). In a case where the couple had signed a no-alimony premarital agreement, the Ninth Circuit held that “neither a divorce judgment nor a premarital agreement may terminate an obligation of support” (Erler v. Erler, 9th Cir. 2016). A Florida prenup still governs the couple’s rights under Florida law (Fla. Stat. § 61.079).
Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, drafts and reviews Florida prenups for couples going through K-1, marriage-based green card and E-2 processes, in English or Spanish: (305) 482-1262. This page is about Florida prenuptial agreements and is not immigration advice; consult an immigration attorney about Form I-864 and your visa.
Two Separate Promises
- The Florida prenup is an agreement between the two of you. It “must be in writing and signed by both parties” (§ 61.079(3)) and can address, among other things, “The establishment, modification, waiver, or elimination of spousal support” (§ 61.079(4)(a)4.).
- Form I-864, the Affidavit of Support, is signed by the sponsor in a family immigration case. Under federal law the sponsor “agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line” (8 U.S.C. § 1183a(a)(1)(A)), and the affidavit is “legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State” and certain benefit agencies (§ 1183a(a)(1)(B)).
USCIS tells sponsors directly: “If you do not provide sufficient support to the person who becomes a lawful permanent resident based on a Form I-864 that you signed, that person may sue you for this support.” (Form I-864, Part 8)
When the I-864 Obligation Ends
The federal regulation lists when the support obligation ends “by operation of law”: when the sponsored immigrant
- “Becomes a citizen of the United States;”
- “Has worked, or can be credited with, 40 qualifying quarters of coverage” under the Social Security Act (with conditions in the rule);
- “Ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States”;
- “Obtains in a removal proceeding a new grant of adjustment of status as relief from removal”; or
- “Dies.”
For the removal-proceeding event, if the immigrant is still subject to the affidavit requirement, the people who signed an affidavit for the new adjustment take on the obligations instead of the earlier signers (§ 213a.2(e)(2)(i)(D)). Some events carry further conditions; read the full regulation.
It “also terminates if the sponsor, substitute sponsor or joint sponsor dies” (8 C.F.R. § 213a.2(e)(2)(ii)). A sponsor’s death ends that person’s ongoing obligation; it does not end another sponsor’s or household member’s obligation for the same immigrant. Termination does not erase reimbursement obligations accrued earlier (§ 213a.2(e)(2)(ii), (e)(3)). Divorce is not on the list, and the form itself says: “NOTE: Divorce does not terminate your obligations under Form I-864.”
What Courts Have Said About Prenups and the I-864
- Eleventh Circuit (Florida, Georgia, Alabama): in Belevich v. Thomas (2021), the sponsors raised equitable defenses; the court held “these defenses are foreclosed by the statute and regulation that govern the Form I-864 affidavit, as well as the text of the affidavit itself.” The published opinion addresses those defenses rather than a prenup waiver.
- Ninth Circuit: in Erler v. Erler (2016), “Prior to their marriage, Ayla and Yashar had entered into a premarital agreement stating that neither party would be entitled to alimony or support from the other.” The court still found that “despite the divorce, Yashar has a continuing obligation to support Ayla.”
- Seventh Circuit: in Liu v. Mund (2012), whose published opinion addresses a divorce rather than a prenup waiver, the court said the federal right of support “exists apart from whatever rights Liu might or might not have under Wisconsin divorce law.”
The opinions discussed here do not decide whether a specifically drafted waiver of an immigrant’s own enforcement rights would be effective. Do not assume that mentioning I-864 in a prenup removes the obligation; consult an immigration attorney. What a Florida family lawyer can do is make sure the prenup is drafted with the I-864 in view, so that neither of you signs believing the agreement does something it may not do.
K-1 Fiancé(e) Visas: the 90-Day Clock
USCIS: “If your fiancé(e) is admitted as a K-1 nonimmigrant, you and your fiancé(e) have 90 days to marry each other,” and “K-1 and K-2 nonimmigrant status automatically expires after 90 days and cannot be extended.” Signing in a rush against that clock can invite a later claim that the agreement was not signed voluntarily (§ 61.079(7)(a)1.). Consider discussing the prenup early with counsel. See Florida prenups for K-1 visa couples and non-U.S. citizens.
E-2 Investors and Other Visa Couples
When one partner funds a business for an E-2 treaty-investor application: if the couple chooses a prenup, the investment and business are topics to discuss before signing. See Florida prenups before an E-2 visa application and prenups for immigrant couples in Florida.
Before You Sign: A Checklist for Couples in an Immigration Process
- Tell your family lawyer if a Form I-864 has been, or will be, signed, and by whom (sponsor or joint sponsor).
- Ask your immigration attorney how the I-864 affects your case; your Florida prenup should not be drafted as if it replaces that obligation.
- Give the non-English-speaking partner a translation and enough time to read it; each of you should have your own lawyer.
- Exchange written financial disclosure, including assets abroad (§ 61.079(7)(a)3.).
- For K-1 couples, start early so signing does not happen days before the wedding.
Frequently Asked Questions
Does a prenup with an alimony waiver also waive the I-864?
Do not assume so. In Erler v. Erler the couple had a no-support premarital agreement, and the Ninth Circuit held that a premarital agreement may not terminate the I-864 support obligation. The Eleventh Circuit, which covers Florida, treated the listed terminating events as exclusive when it rejected sponsors’ equitable defenses. Ask an immigration attorney about your case.
Does divorce end the I-864 obligation?
USCIS says no: “Divorce does not end the sponsorship obligation.” The obligation ends on the events listed in 8 C.F.R. § 213a.2(e)(2).
Can a Florida prenup still waive alimony under Florida law?
Florida’s statute allows a premarital agreement to address “The establishment, modification, waiver, or elimination of spousal support” (§ 61.079(4)(a)4.), subject to the enforcement rules in § 61.079(7). That is separate from the federal I-864 obligation.
Do we need a prenup to get a K-1 visa or a green card?
This page does not determine immigration eligibility; ask an immigration attorney what your visa or green card requires. Whether to sign a prenup is the couple’s decision under Florida law.
Primary Sources
- 8 U.S.C. § 1183a — requirements for sponsor’s affidavit of support.
- 8 C.F.R. § 213a.2 — use of affidavit of support; termination.
- USCIS, Form I-864 and instructions (edition 08/24/26).
- USCIS, Visas for Fiancé(e)s of U.S. Citizens.
- Belevich v. Thomas, 17 F.4th 1048 (11th Cir. 2021); Erler v. Erler, 824 F.3d 1173 (9th Cir. 2016); Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).
- Fla. Stat. § 61.079 — premarital agreements.
Related Reading
- K-1 visa and non-U.S. citizen prenups in Florida
- Florida prenup before an E-2 investor visa application
- International prenuptial agreements in Florida
- Prenups for immigrant couples in Florida
Attorney advertising. General information about Florida prenuptial agreements; not legal advice and not immigration advice. Consult an immigration attorney about Form I-864 and your visa.