Beware of prenuptial agreements and
the Affidavit of Support in immigration matters.
More and more courts are starting to enforce
the affidavits of support signed by the sponsors when they intend to bring an
immigrant into the United States. The scenario
works as follows: Husband, a wealthy United States Citizen, wants to marry
"the love of his life" who lives in another country and now wants to
bring her to the United States. Before
marriage, both parties enter into a prenuptial agreement wherein Husband agrees
to pay Wife some amount of spousal support for 12 months only. In his mind,
after the 12 months, he believes that he will be free and clear of any responsibility
to continue with any support obligation.
Or so he thinks......
The Immigration and Naturalization
Act states that any immigrant seeking admission to the United States will not
be admitted if they are “likely at any time
to become a public charge[.]” This provision is implemented by requiring the
Husband in our fact pattern to execute an affidavit of support. Id. §
1182(a)(4)(C)(ii). That affidavit is a contract
in which “the sponsor agrees to provide
support to maintain the sponsored alien at an annual income that is not less
than 125 percent of the Federal poverty line during the period in which the
affidavit is enforceable[.]” Id. § 1183a(a)(1)(A). A very important factor to consider is that
this is a contract legally enforceable against the husband by the wife (or by
the Federal Government, any State, local or any other entity providing any
means-tested public benefit) and, pursuant to the contract, the husband agrees
to submit to the jurisdiction of any Federal or State court for the
purposes of enforcement of the contract. Id. § 1183a(a)(1)(B)-(C).
Federal courts have subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 because the claim involves a federal
statute. Venue is proper in any judicial
district where the Husband resides.
Wife can allege that Husband has
violated and is violating his obligation to adequately support her financially,
per the obligation husband agreed to when he signed the Form I-864. Wife can
argue (even if there is a prenuptial agreement) that the Form I-864 remains a
valid and executable contract between Wife and Husband. Husband in this case was advised under the
form he signed that that if he or she signs a Form I-864 as part of the wife's
application package, “under 213A of the Immigration and Nationality Act these
actions create a contract between you and the U.S. Government. The Wife
becoming a permanent resident is the ‘consideration’ for the contract.” This
obligation of support, imposed by federal law, is separate and apart from any obligation
of support imposed under Maryland law or right to support waived by the parties
via an ante-nuptial agreement. The Form I-864 presently makes explicit that
“divorce does not terminate your obligations under this Form I-864.”
So the next question should be: for
how long am I on the "hock" under this legal contract? The law lists five circumstances whereby husband's
financial obligation terminates: (1) the wife becomes a citizen of the United
States; (2) the wife has obtained forty (40) quarters of coverage under Title
II of the Social Security Act; (3) the wife ceases to be a legal resident and
departs the United States; (4) the wife becomes subject to removal but applies
for and obtains a new grant of adjustment of status; or (5) the wife dies.
For those family law practitioners
out there in spousal support cases with pre-nups (or even without), if the
spouse was "sponsored" the other spouse to immigrate to the United States
and his/her obligation has not ended under the law, there is another way to get
spousal support for your client. Always ask those questions that you don't
think are relevant; i.e., did your spouse sign any contract with the United States
saying he/she would support you? If you think you have an issue such as this,
contact Strickland & Amezola, APC at (619) 230-1773 to see if we can help.
This is not legal advise, and is merely intended to be used
for information purposes only.
Consider perusing through these
cases:
•
Ohio:
Davis v. Davis, No. WD-04-020, 2004 WL2924344 (Ohio App. 6 Dist. Dec.
17, 2004) - Immigrant
wife countersues U.S. citizen husband for legal separation and support. Wife
appealed because district court refused to take jurisdiction over I-864
enforcement. Court of appeals found wife had standing and state courts have
jurisdiction to enforce I-864s.
•
Louisiana:
Ainsworth v. Ainsworth, No. 02-1137-A,
2004U.S. Dis. LEXIS 28961 (M.D. La. May 27, 2004). Immigrant wife sued
husband for support under I-864. Court
found wife entitled to specific performance. Husband ordered to pay support at
125% federal poverty guidelines
• Florida: Cheshire v. Cheshire, No. 3:05-cv-00453- TJC-MCR, 2006 WL 1208010
(M.D. Fla. May 4, 2006)Immigrant ex-wife sued USC ex-husband for enforcement of
I-864. Court found for wife, but 125% level should be reduced by income wife
receives from other sources
•
Indiana: Stump v. Stump, No. 1:04-cv-253-TS, 2005 WL2757329
(N.D. Ind. Oct. 25, 2005). Immigrant ex-wife sought enforcement of I-864 when
she couldn’t find employment. Court found ex-husband liable at 125% poverty
guidelines. Court made damages calculation based on contract law to place wife
in the position she would have been in if there had not been a breach.
• Maryland:
Younis v. Farooqi, Civil No. CCB-07-1393 (Feb. 7, 2009). Immigrant ex-wife
receiving alimony in the amount o $850
and child support in the amount of $556, sues ex-husband in federal court
solely to enforce I-864. Court found that child support amount could not be
calculated towards the 125% poverty guideline for wife. Wife got a $20,816
judgment against husband because the past spousal support did not satisfy the
125% poverty guidelines requirement as
he had signed on the affidavit when he immigrated her to the United States. The
court held that Mr. Farooqi contractually agreed to support the plaintiff at
125% of the federal poverty level, and he cannot now avoid that obligation
because his immigrant ex-wife – who has no driver’s license and only limited
education, experience, and command of the English language, in addition to the
responsibility of caring for a young child; has been unable to find full-time,
paid employment within a couple of years of their divorce.
• Maryland: Toure-Davis v. Davis
(March 2014) The court found that the
Form I-864, affidavit of support, 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.
• California:
Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D.
Cal. 2008). W and H were married in January 1999. The couple separated in October
1999. In 2003, they filed for divorce. In 2005, W and H agreed to a divorce
settlement in which H agreed to pay W the sum of $49,000. (no mention of s/s
was made). W then sues H for breach of contract under the I-864 affidavit terms
claiming that H had failed to ensure that she is supported above the 125%
poverty guidelines as he “promised” when he signed the contract. Court Held:
the I-864 is legally enforceable but recognized certain set-offs and made
husband responsible for certain years of support in the marriage. Remember,
this was a 9 month marriage only!
