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.

        • svetosa

          You must support her for 10 Years . You lived together years ??? and you supported her because she did not work at all. Result 10 years minus ???? years you supported her during marriage.

        • svetosa

          Again it depends on her ability to learn skill and obtain job. Fairly you must provide support to bring her to self supportive.

      • svetosa

        Even if there is a court decision on enforcement. Who will enforce it. Congress did not bring the law to conclusion. They never established any enforcement authority to do this job of withdrawal money from sponsor. So Sponsor can relax and do not pay anything even with the court decision.

    • svetosa

      No. You cannot sue for support. 10 years of marriage gives you all Social Security benefits rights.

  • Alpha

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

  • Brett Schultz

    what impact, if any, does I-864 have on a prenuptial waiving alimony if prenup was signed BEFORE I-864 is executed?

    • vizerlaw

      As stated above, a federal district court in Maryland reasoned 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.
      Additional recommended reading: Panchal v. Panchal, 2013 IL App (4th) 120532-U, No. 4-12-0532, 2013 Ill. App. LEXIS 1864, at *11 (Ill. App. Ct. 4th Dist. 2013) (http://www.illinoiscourts.gov/R23_Orders/AppellateCourt/2013/4thDistrict/4120532_R23.pdf); Liepe v. Liepe, Civil No. 12–00040 (RBK/JS), 2012 U.S. Dist. LEXIS 174246 (D.N.J. Dec. 10, 2012) (https://cases.justia.com/federal/district-courts/new-jersey/njdce/1:2012cv00040/268823/67/0.pdf?ts=1411590861).

    • svetosa

      The law is a joke. I was a sponsored immigrant.There was not prenuptial at all in my case and sponsor won divorce court and won federal court.Divorce Court decision was ” She is able to work and capable to find job” despite of my poor health and my age over 50.Federal court decision was ” I 864 was decided at divorce in Supreme court ” .I ended up at government assistance so called Obama care and got under mandatory work enforcement. The answer from them was ” we do not deal with sponsors and do not enforce it and permanent resident have obligation to work the same like citizens. They must put immigrant to work at non paid job if he or she can’t find job. I was not placed to work because my doctors protested as I have disabling and life threatening disease. All cases are different so it is difficult to advise you. It depends on years of marriage and if she has any income or any assets,if you still live in the same house and so on. Normally she cannot sue you for I 864 in Federal court until you are divorced. This way you have to go through divorce which is very costly. The I 864 was created on benefits of Government not on immigrant benefit. You and she must come to decision on your own or with lawyers help. As soon I hire a lawyers they start pulling money from you for divorce proceeding step by step and it is alot. All this lawyers process goes minimum one year then if two of you do not come to your own agreement then it will go to trial before Judge which is minimum $100.000 and up to ……. depends on time. Judge will make a decision monthly spousal support $500 for one year then another trial on I 864 will be after ( $$$) and again the judge will make a decision depending on her ability to work not on the prenuptial agreement. Prenuptial does not go in effect in cases of sponsors obligation but lawyer will take it to attention for purposes of screwing you up and pulling money out of your pocket. My advise better throw out the prenuptial and do not waste your money. Your wife will lose even if you pay your sponsors obligation. You have to pay how much ? Depends if you supported her before if she ever worked and if she got education.Assume you never supported her then it is 10 Years your due and you must pay. But what she is going to do after your obligation ends.? She must get education during this 10 years if she did not get it before other wise she ends up at work force at non paid job which is ” slavery”. She does not want it. Beside of that she loses her work experience not working at all. You will need to spy on her if she makes any cash money doing side work and then she will be arrested and deported if she does.On another side you will be burden to provide evidence of her cash jobs. If she ever worked then you pay only remaining years out of the 10. In my case I had my savings from my country and my house from country transfered here. All my assets went on distribution with my husband but I was not responsible for his debts accrued during our physical separation. Money that he stole from me during marriage did not count because if a spouse takes money from another spouse it is not considered stealing.And I had to pay my divorce attorney not my sponsor-spouse. Normally he was my sponsor on this shitty peace of paper I864 but he was on my support during our marriage. Only what court forced him was to reopen health insurance for me through his job because of my health condition.After divorce I have not even been eligible for any medical help until I spend all my assets and become homeless. If you want more advises post all your story from A to Z