Family law attorneys understand that a divorce permanently dissolves the bonds of matrimony between two spouses, making them two single individuals free to go on their separate ways, once the court has entered the judgment and decree. However, contrary to popular belief, divorce does not terminate a very important financial contract, if one of them is a foreign national who obtained lawful permanent residency through the marriage. That contract is the Affidavit of Support, U.S. Citizenship and Immigration Services Form I-864, governed by the Immigration and Nationality Act, Section 213A.
Here is an example of how the Affidavit of Support comes into play. Let’s say a U.S. citizen woman meets a man born in Ecuador, living in the United States without immigration status.[1] The couple marries, and they decide to hire an immigration attorney so that husband can legally be in the United States, as simply getting married is not enough to resolve that issue. Through the spousal petition process, the wife must sign Form I-864, the Affidavit of Support, which is a contract between the wife, as the spouse who is petitioning for the foreign national (the “sponsor”), and the U.S. government. The instructions for Form I-864 on the U.S. Citizenship and Immigration Services website clearly state that the wife, as a sponsor, has to prove that she enough income to maintain her husband (the “intending immigrant”) and the rest of her household, at 125% of the Federal Poverty Guidelines, and that signing the form obligates her to support her husband once he becomes a lawful permanent resident. Signing the I-864 gives rise to three obligations: 1) maintain the spouse at 125% of the federal poverty line; 2) reimburse the government if the foreign national spouse uses any means-tested benefits; and 3) report changes of address for long as the affidavit is in effect. The Affidavit of Support can terminate only if one the following events occurs: 1) the immigrant spouse earns 40 qualifying quarters of work in the U.S.; 2) the immigrant spouse naturalizes as a U.S. citizen; 3) the immigrant spouse loses his lawful permanent residency status and leaves the U.S.; or 4) the immigrant spouse dies. The Immigration and Nationality Act does not provide a way out of this contract on the basis of divorce.
If you are contemplating divorce from your spouse and either you or your spouse is a foreign national, and one of you signed an Affidavit of Support through an immigration petition, it is crucial that you mention this when speaking with a family law attorney. If a spouse wants to ensure he is not on the hook for the I-864 after the divorce, he may have an incentive to help pay for the spouse’s application to become a U.S. citizen. In a dissolution petition or answer and counter-petition, a foreign national spouse should assert a claim for spousal maintenance to avoid economic struggles that could lead to the need for public assistance, thus invoking the right of the U.S. government to enforce the contract against the sponsor. At Wilson Law Group, our family law attorneys understand the impact that an Affidavit of Support has, and how important it is to include it in the dissolution pleadings in settlement negotiations. Please call to schedule a free consultation at 612.436.7100.
