Can My Spouse Sue Me Under The I-864 Affidavit Of Support Agreement?

When a married couple separates, spousal maintenance (or “alimony”) is generally not available automatically as a matter of right. Whether one former spouse will be responsible for supporting the other depends on a multitude of factors which vary state-to-state.

It may then come as a shock to sponsors to learn of a common immigration form that may require a divorce court to award substantial financial support, regardless. The form may require payment of financial support for an unlimited period of time, even when a marriage was short lived.

The I-864 form is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.

Once the form is signed, you have agreed to support your spouse financially until they have worked 10 quarters or have become a U.S. citizen.

Can My Immigrant Spouse Sue Me If We Divorce?

The answer is yes she can! Your spouse can sue you and receive a large sum of money if they win in court(Stump v Stump).

A federal district court in Fort Wayne, Indiana has upheld the sponsored alien’s right to recover money from her sponsor. Stump v. Stump, 2005 U.S. Dist. LEXIS 26002 (October 25, 2005). In the case before the court the sponsored alien was the spouse of a U.S. citizen who originally entered as a fiancée.

The U.S. citizen spouse had executed and filed an I-864 on behalf of his wife as part of her application for adjustment of status. The parties separated approximately one year after they were married and were in divorce proceedings at the time this action was brought.  In lieu of seeking maintenance (spousal support or alimony) in the state court action, the alien spouse sued the sponsor in federal court asking for money owed under the terms of the affidavit of support.

The federal court granted the plaintiff’s motion for summary judgment and found the sponsor liable under the contract, concluding that the sponsor was obligated to maintain the alien spouse at 125 percent of the poverty income level. It then held an evidentiary trial on the issue of damages and awarded the alien spouse almost $19,000. 

divorce-affidavitofsupportAs the sponsor you are responsible for maintaining the sponsored immigrant at 125% of the poverty line. There are several states that now use the I-864 as a bar or means to determine spousal support (New York, New Jersey, Michigan, Ohio, California, Florida).

Your immigrant spouse will have to sue you in federal court. For example, in Texas the I-864 has been upheld in the 6th (Liu V Liu) and in the 7th Circuit court (Kamali V Kamali).

It should be strongly noted that both of these cases, to the best of my knowledge, were found guilty of Domestic Violence.

Can My Spouse Sue Me If She Has A Conditional Green Card?

An important condition has been recognized under the latest iteration of the I-864 (revise d 09/19/2011). Under the new form, it would appear that a beneficiary must achieve lawful permanent resident status (LPR) in order to sue in federal court.

In a Virginia case (Chavez V Chavez) the Virginia court concluded that “becoming a resident is a condition precedent“.

This result is consistent with the understanding of the Department Of Homeland Security, which has expressly considered and endorsed the view that a sponsor’s support duties only arise after the intending immigrant acquires status.

How To Defend Against The Enforcement of The I-864 Affidavit of Support In Court?

lawsuit-i864-spousalsupportUnconscionability

A contract is rendered unenforceable if it was unconscionable at the time the agreement was entered into. The sponsor asserts that his wife’s immigration benefit would have been denied had he refused to sign the I-864 and also that she would have divorced him. (Baines v. Baines)

Fraud

Sponsors have alleged they were fraudulently induced to sign Affidavits of Support, but such defenses or counter claims have tended to die quick deaths at summary judgment.

If the sponsor had produced inadmissible evidence of emails purporting to show that the beneficiary had designed a scam marriage –but even if admitted the emails lacked sufficient particulars to pass summary judgment on the question of fraud. (Carlbog v. Tompkins)

Impossibility

Addressing an unlikely fact pattern, the Court upheld the trial court’s finding that the beneficiary-sponsor had rendered performance of the I-864 impossible by returning to his home country (temporarily) and concealing his whereabouts.

This was a battle lost at trial –the appellate court refused to reweigh the evidence, ending the argument. (HajiZadeh v. HajiZadeh)

It is in your best interest to contact an attorney that is familiar with this area of law. Always keep any documentation about your immigration journey in a safe place in case you need to defend yourself in court.

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Greg McLawsen
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Thanks for drawing attention to this important topic.

Regarding conditional LPRs, it’s important for folks to understand that conditional LPRs *are* lawful permanent residents. It is definitely possible for a conditional LPR to recover support under the I-864.

It’s also important for folks to understand that these cases can also be brought in state court, since they are breach of contract cases. In fact, there’s no reason that a beneficiary can’t bring a lawsuit in small claims court (if the amount in controversy is low).

For a series of three articles, covering every I-864 enforcement case ever decided.