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Rice Law Blog

The intersection of Family Law and Immigration Law: Alien love and marriage

Normally, the strife and stress of an unhappy marriage ends upon successfully obtaining of an absolute divorce. But, when a spouse is from another country, the end may not be so easily achieved and obligations post-marriage may be greater than ever imaginable. For the U.S. citizen, the effects of marrying and subsequently divorcing a foreign born spouse can be financially devastating—and for the foreign-born spouse divorce may be a boon.

The federal government is heavily involved in international marriages. All immigrants whose U.S. Citizen spouses use family preferences to gain entry into the United States are required by the federal government to make significant financial assurances. These assurance and obligations are contracted for by the United States through Form I-864, Affidavit of Support Under Section 213A of the Act, and it requires the sponsor of a relative immigrant to guarantee financial support to the relative immigrant so that they do not become “public charges.”[1]

Form I-864, Affidavit of Support

Form I-864 is a contract between the sponsor and the Federal government and requires the sponsor to support the immigrant relative at a level equivalent to 125% of the poverty line for his or her household size. Being a beneficiary to the contract, the immigrant—in addition to the Federal government—may sue you for the promised support in the event the sponsor breaches that obligation. If any federal program or agency provides support to the immigrant they may sue the sponsor to personally reimburse them. Further, the sponsor may be liable for the prevailing party’s collection expenses, including attorney fees.

Divorce does not terminate the sponsor’s obligation to provide the contracted for support. The only means of terminating the obligation are: (1) the immigrant spouse becomes a U.S. citizen; (2) the immigrant spouse has worked 40 Social Security Act eligible quarters (at least 10 years); (3) the immigrant spouse no longer has permanent alien status and has left the United States; (4) the immigrant spouse obtains a new grant of adjustment of status, based on a new affidavit of support; or (5) the immigrant spouse dies. The sponsor’s death likewise cuts off the obligation but not with regards to any support the sponsor already owes, which will be payable by the sponsor’s estate.[1]

Where and how the obligation contracted for intersects state family law is significant. An immigrant spouse need not attempt enforcement of this obligation in federal court. By signing Form I-864, the sponsor agrees to submit to the personal jurisdiction “of any Federal or State court that has subject matter jurisdiction of a lawsuit against [the sponsor] to enforce [the] obligations.”[1] In fact, several state courts have already found Form I-864 enforceable under contract law and have upheld its obligations to the letter; on appeal, these cases are generally upheld.[2] Further, Form I-864 has been used by the some state courts as clear evidence that a duty of support is owed in post-separation and alimony proceedings. And, in some states, Form I-864 may even be considered in determining the amount and duration of spousal support or the equitable distribution of property.[3]

Due to the legally delicate nature of this contract, special advice should be sought by a client with a current or potential immigrant spouse and extraordinary diligence by the attorney is necessary to avoid overly oppressive support obligations. While there is little to be done by either attorney or client with respect to Form I-864 as it is required to gain entry into the United States, there are considerations to be taken in drafting Pre-nuptial Agreements, Post-Separation Agreements, and other documents of the sort.

If you are a United States citizen considering love abroad or a resident alien married to a U.S. citizen that sponsored your entry into the United States, seek out and consult a knowledgeable attorney licensed in your state to determine the rights and obligations that may be applicable to your current situation.

Published February 26, 2009 | Authored by Richard Forrest Kern, Rice Law, PLLC

[1] U.S. Citizenship & Immigration Services, Department of Homeland Security, Form I-864 (2007), available at www.uscis.gov/files/form/I-864.pdf

[2] See Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR (M.D. Fla. May 4, 2006) (holding that husband in a divorce action is obligated to pay support payments based on form I-864 affidavit of support and that it is immaterial whether the husband can afford the judgment, and that the wife is not required to work); And Stump v. Stump NO.: 1:04-CV-253-TS (N.D. In. May 27, 2005).

[3] Kohtz, Rong T., Law Offices of, Financial Responsibility for an Immigrant Spouse under New York Divorce Law, retreived from: www.divorcenet.com/states/new_york/financial_responsibility_immigrant_spouse_ny on January 29, 2009.

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