Divorce, Immigrant Spouse, Maintenance and Affidavit of Support

When either a husband or wife marries someone who is not a legal resident of the United States and brings them to this country, as a part of his/her immigration application, the spouse who is a citizen of the United States certified that he/she would provide support for their spouse once that spouse is in the United States and would not allow her to become a public charge. See 8 U.S.C. §1182(a) (which prohibits immigration when the immigrant has no means of support and is likely to become a public charge). This requirement is satisfied by what is known as an affidavit of support, the I-864 form. By signing it, the party certifies that he/she would provide their spouse with an income of 125% of the Federal Poverty Level guidelines. In 2008, the Federal Poverty Level guidelines state that the poverty level income for a household of one is $10,400.00, and the corresponding income level under the affidavit of support is $13,000.00.
According to the Appellate Division, Fourth Department, where a party signs an affidavit of support, form I-864, that affidavit is a legally enforceable contract. Moody v. Sorokina, 40 A.D.3d 14 (4th Dept. 2007). In that case, a Ukrainian national emigrated to the United States to marry her eventual husband in New York. When the husband filed for divorce several years later, the wife sought to enforce the Affidavit of Support for purposes of determining the number of support payments to be made by the husband. While the trial court rejected the wife’s argument and held that the affidavit could not be enforced in court by private parties, the Appellate Division, Fourth Department reversed the lower court and held that the affidavit of support was enforceable. The Appellate Division held that the execution of an affidavit of support creates a legally enforceable agreement between the parties involved that can be enforced by the sponsored immigrant in any federal or state court. Id. at 401. Moreover, the Fourth Department explained that the terms of the agreement are not affected by a subsequent judgment of divorce. As such, the agreement remains fully binding on all parties until the sponsored immigrant “has worked 40 qualifying quarters of coverage,” as defined by the Social Security laws. The enforcement of the right of support also includes attorneys' fees. Id.
Therefore, when the spouses separate and the immigrant spouse is unable or unwilling to work, the spouse who is a citizen of the United States will be responsible for their spouse’s support until such time as that spouse becomes self-sufficient, or perhaps even indefinitely.