Divorce does not eliminate your obligations under Affidavit of Support (Form I-864) even if you have a prenup waiving alimony

Photograph: Mike Kemp/Getty Images

Photograph: Mike Kemp/Getty Images

Back in July 2012, the 7th Circuit held that even if an immigrant spouse is sitting at home without seeking work, a sponsoring spouse who signed the Affidavit of Support (Form I-864) still has a duty to support the immigrant spouse at 125% of the Federal poverty level. In other words, there is no duty of mitigation with respect to obligations under the affidavit. The court reasoned that the required level of support is meager, so the sponsored immigrant has a strong incentive to seek employment, apart from any legal duty. The court also clarified that Form I-864 presently makes explicit that “divorce does not terminate your obligations under this Form I-864,” a fact which was merely implicit back in 1999. See Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).

Most recently, the U.S. District Court of Maryland held that Form I-864 is enforceable even if a couple had previously signed a prenup waiving their right to alimony. Specifically, the Court found that Form I-864, imposed by federal law, is separate from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement. The Court quoted a few decisions holding that “the parties by their conduct may waive the requirements of a written contract’,” and explained that, “[b]ecause Defendant signed the ante-nuptial agreement before he signed the Form I-864, the sequence of Defendant’s actions leads to the conclusion that the Form I-864 waived that portion of the ante-nuptial agreement concerning spousal support.” See Toure-Davis v. Davis, Dist. Court, D. Maryland 2014. 

So to summarize the lessons learned from the above decisions:

  1. divorce does not end a sponsoring spouse’s obligations under Form I-864
  2. the sponsoring spouse is still obligated to support the immigrant spouse, even if the  immigrant spouse is not seeking work
  3. the sponsoring spouse is still obligated to support the immigrant spouse, despite a prenup waiving alimony rights

The bottom line is that, although Form I-864 is a necessary document in the adjustment of status process, it can have very real legal consequences and should not be signed without a full understanding of the obligations it creates in the sponsor, whether it be the immigrant’s spouse or someone else. The federal regulations provide that “[e]xecution of an affidavit of support . . . creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local government agency or private entity that administers any means-tested public benefits program.” 8 C.F.R. § 213a.2(d) (2013). This means that federal, state, local, and even private agencies can go after the sponsor for reimbursement in the event that they provide means-tested public benefits to the immigrant spouse.

There are only 5 circumstances under the law whereby the sponsor’s financial obligation terminates:

  1.  the sponsored immigrant becomes a citizen of the United States;
  2. the sponsored immigrant has obtained 40 quarters of coverage under Title II of the Social Security Act;
  3. the sponsored immigrant ceases to hold LPR status and departs the United States;
  4. the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; OR
  5. the sponsored immigrant dies. 8 C.F.R. § 213a.2(e)(2)(i)(A)-(E).
  • Mnx Typ

    If the couple is married for 10 years and then divorce, does the alien spouse get credit for the hours worked in that duration by the sponsor spouse. The husband worked for 10 years and then they get divorced. Can he still be sued for support,she is not a citizen.

    • vizerlaw

      Given the limited facts, it is unclear whether one or more of the above listed 5 circumstances terminating a sponsor’s obligations have been met. To be clear, while a Form I-864 may be used as evidence in divorce proceedings to determine possible spousal maintenance (alimony), spousal maintenance and the obligations created by Form I-864 are two separate issues.

      For purposes of the I-864, if it is enforceable (because none of the 5 circumstances have been met), the real question becomes whether the foreign national ex-spouse is able to support him/herself at 125% of the poverty level ($14,713 for FY2015 in most states). If he/she cannot, then he/she can sue the sponsor to enforce the I-864 obligations, or if he/she obtains means-tested public benefits, the agencies that provide these benefits can then go after the sponsor for reimbursement. If the sponsor does not make the reimbursement, the agency may sue him/her for the amount the agency believes it is owed. If the sponsor is sued, and the court enters a judgment against him/her, the suing party may use any legally permitted procedures for enforcing or collecting the judgment. The sponsor may also be required to pay the costs of collection, including attorney fees.

      That being said, each case has different facts. Therefore, our response to your question is treated only as a hypothetical, and as such it is merely general in nature. You should not rely on this response in taking or forgoing action in your circumstances without discussing this matter with an attorney.

      • Mnx Typ

        Thanks for the response.

        Out of the 5 factors, 4 are clearly met.

        As for factor 2, the question is can the LPR can be credited with 40 quarters of work hours under title II, if she has never been employed but the sponsor was employed at a well paying job for 10 years?
        While in a marriage the non employed spouse shares credit for quarters with the employed spouse.
        Upon divorce, shared quarters are lost as per SSA. How does that aspect apply to i864?

        • vizerlaw

          A disability/SSI attorney may be able to give you a clearer answer on this one.

          However, the I-864 instructions indicate that the following type of intending immigrants are exempt from filing Form I-864: “Any intending immigrant who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States. In addition to their own work, intending immigrants may be able to secure credit for work performed by a spouse during marriage and by their parent(s) while the immigrants were under 18 years of age. The Social Security Administration (SSA) can provide information on how to count quarters of work earned or credit and how to provide evidence of such. See the SSA Web site at http://www.ssa.gov/mystatement/credits for more information”

          Finally, if just ONE of the 5 circumstances above is met, then the I-864 obligations are terminated. So if 4 of them have already been met, then there is no reason to worry about the remaining one. I apologize it that wasn’t clear–editing post to reflect that these are independent grounds for termination. Thank you for commenting.

  • Alpha

    So does it mean that if I make 125% of Poverty level a year, my sponsor is not required to pay me support?