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Can a spouse receive spousal support based on Affidavit of Support (I-864)?

San Antonio, TX |

I am getting a divorce and we lived together only for less than 6 months. He is a lazy immigrant who is unemployed. He is suing me for spousal support! I live in San Antonio, TX. Texas does not have alimony. Can the spouse receive spousal support based on the affidavit of support I signed to bring him oversees? Can he get that when he is purposely not working to get money from me?

Attorney Answers 4

Posted

Yes, he can move to have the affidavit of support enforced.

As you are aware, there is a procedure for a citizen of the United States to sponsor a noncitizen for immigration into the country. As a condition precedent to granting immigration status, the government requires the sponsor to execute an affidavit (Form I-864 Affidavit of Support), wherein the sponsor promises to support the immigrant seeking admission to the United States at a level not less than 125% of the national poverty level. The sponsor’s obligation to support the immigrant continues until one of the following circumstances occurs:
(1) either the immigrant or the sponsor dies,
(2) the immigrant achieves citizenship,
(3) the immigrant leaves the United States and does not return, or
(4) the immigrant maintains employment that qualifies for Social Security for a total of forty quarters of years. 8 C.F.R. 213a.2.

The instructions for completing the form specifically state that “[d]ivorce does not end the sponsorship obligation.”

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Posted

Yes, he can do it. You may have a contractual right to reduce the support based on his duty to mitigate, depending on the laws of your state and your circuit.

The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.

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Posted

No, Alimony is a separate issue than the I-864 affidavit of support. highly unlikely that he would be able to receive alimony based upon a 6 month marriage but you will need to consult with a family divorce attorney in Tx.

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Posted

I cannot comment on TX law, but he cannot enforce the AOF this way. AOF is there for a number of reasons but not for this. The problem is if he seeks government benefits, gets them on false presences and later on the government will figure out that you and an affidavit of support. They will then hit you with the bill. Sounds paranoid? I know. Facts from a real case. BTW, I would take offense with the "lazy immigrant" charge. Loath is a sin that pertains to immigrants much less than not immigrants.

Site: www.myattorneyusa.com email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.For legal advice please contact us directly through one of the above.

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2 comments

Mark Robert Barr

Mark Robert Barr

Posted

Mr. Moody would disagree. Moody v Sorokina 2007 NY Slip Op 00947 [40 AD3d 14] February 2, 2007 Pine, J., J. Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 20, 2007 [*1] John Moody, Respondent, v Svetlana Sorokina, Appellant. (Appeal No. 1.) Fourth Department, February 2, 2007 APPEARANCES OF COUNSEL Svetlana Sorokina, appellant pro se. Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., Syracuse (Shari R. Cohen of counsel), for respondent. Eugene J. Langone, Jr., Law Guardian, Watertown, for N.M. {**40 AD3d at 15} OPINION OF THE COURT Pine, J. {**40 AD3d at 16}I Defendant is a Ukrainian national who emigrated to the United States in order to marry plaintiff, and the parties were married in the United States in June 1999. In July 1999 plaintiff executed a federal affidavit of support, Form I-864, in which he agreed, inter alia, to support defendant at or above 125% of the federal poverty line until the occurrence of a qualifying terminating event. The parties had a child in November 2001, and in May 2002 plaintiff obtained an ex parte temporary order of custody and a temporary Family Court order of protection requiring defendant to stay away from plaintiff and the child. Also in May 2002 plaintiff commenced a divorce action against defendant. Family Court transferred the custody matter to Supreme Court to be addressed in the context of the pending divorce action. A judgment of divorce was entered in October 2004, but the issues of custody, maintenance, support pursuant to the federal affidavit of support and equitable distribution were not addressed in that judgment. Following separate trials on custody and the economic issues, Supreme Court issued an order that, inter alia, granted the parties joint custody of the child, with primary physical placement to plaintiff, and determined the issues of maintenance, support pursuant to the [*2]federal affidavit of support and equitable distribution. We note at the outset that the amended order in appeal No. 2 merely corrected references to the parties, and thus defendant's appeal from the amended order should be dismissed (see Matter of Kolasz v Levitt, 63 AD2d 777, 779 [1978]). One of defendant's contentions on appeal is that the court erred in determining that defendant was not entitled to seek enforcement of the federal affidavit of support. This contention raises an issue of first impression at the appellate level in New York and, for the reasons that follow, we agree with defendant. II Family-sponsored immigrants such as defendant are generally considered "ineligible . . . to be admitted to the United States" unless the immigrant has obtained the status of a spouse or other acceptable classification and "the person petitioning for the alien's admission . . . has executed an affidavit of support described in section 1183a" (8 USC § 1182 [a] [4] [C] [ii]; see § 1182 [a] [4] [C] [i]; Cheshire v Cheshire, 2006 WL 1208010, *2, 2006 US Dist LEXIS 26602, *5 [MD Fla]; Gallagher, Immigration LawBasics and More, Grounds of Inadmissibility, American Law Institute-American Bar Association Continuing Legal Education, May 6, 1999, SD61 ALI-ABA 265, 277).{**40 AD3d at 17} Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Pub L 104-208, 110 US Stat 3009-546), which amended Immigration and Nationality Act (INA) § 213A, the affidavit of support was Form I-134. That affidavit was held not to constitute a legally enforceable contract against a sponsor by a sponsored immigrant (see Cheshire, 2006 WL 1208010, *2, 2006 US Dist LEXIS 26602, *6; Tornheim v Kohn, 2002 WL 482534, *3-5, 2002 US Dist LEXIS 27914, *7-15 [ED NY]). The IIRIRA, however, "instituted a legally enforceable affidavit of support for most family[-]based immigrant visa applications" (Notkin, 30th Annual Immigration and Naturalization Institute, The New Affidavit of Support, Practising Law Institute, Oct. 1997, 1021 PL

Alexander Joseph Segal

Alexander Joseph Segal

Posted

Ok. I am convinced. I stand corrected.

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