I-864 FORM, DIVORCE AND SPOUSAL SUPPORT. IS US CITIZEN OBLIGATED TO PAY SUPPORT AND FOR HOW LONG?
SPOUSAL SUPPORT OBLIGATIONS UNDER I-864 AFFIDAVIT & PREMARITAL AGREEMENT.
U.S. CITIZENS’ SPOUSAL SUPPORT OBLIGATIONS AND IMMIGRANTS’ RIGHTS TO ASK FOR SPOUSAL SUPPORT UPON DIVORCE.
Immigrants (aliens), upon marrying U.S. citizens, have to meet certain requirements in order to obtain a permanent resident status.
One of these requirements is that a U.S. citizen spouse has to sign an Affidavit of Support (form I-864) agreeing to support his/her spouse (alien) at 125% of the poverty level if they divorce.
The form can be found at:
https://www.uscis.gov/sites/default/files/files/form/i-864.pdf
The poverty level can be found at:
https://aspe.hhs.gov/poverty-guidelines
This affidavit creates an agreement between a U.S. citizen (sponsor/spouse) and the United States.
It is quite common in the U.S. to sign a premarital agreement before getting married. It is even more common to sign a premarital agreement if a U.S. citizen marries a foreigner/immigrant (alien).
A premarital agreement (also known as a pre-nuptial agreement or prenup) is an agreement between a fiancé and bridegroom regarding their property rights and obligations. It becomes affective upon the marriage of the couple.
It is very important that both parties, U.S. citizens and immigrants (aliens), understand that a premarital agreement containing a spousal support waiver may not terminate federal support affidavit obligations.
The affidavit confers a federal right to support that exists separately from spousal support rights established by state law. Additionally, a spouse (alien) seeking to enforce the affidavit support obligations under a form I-864 has no duty to mitigate damages by seeking employment.
When does this spousal support obligation end?
U.S. citizens’ obligations under a form I-864 end if the spouse/ex-spouse who became a lawful permanent resident based on the affidavit U.S. citizen signed:
- Becomes a U.S. citizen;
- Has worked, or can receive credit for, 40 quarters of coverage under Social Security Act;
- No longer has lawful permanent resident status and has departed the U.S.;
- Is subject to removal, but applies for and obtains, in removal proceedings, a new grant for adjustment of status, based on a new affidavit of support, if one is required; or,
- Dies.
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