Spousal Support and Immigration

Family Law has been described as being similar to General Practice because it can interact with other specialties of law such as real estate, retirement, estate planning, income tax, criminal law and bankruptcy to name a few. Another interaction is with Immigration Law.

One such case is In Re Marriage of Kumar (2017) 13 Ca 5th 1072. Kumar was a Dissolution of Marriage proceeding involving a US citizen husband and a wife who was a citizen Fiji. In 2012, husband and wife married in Fiji and husband then filed an immigration visa petition for wife, form I-130. In connection with bringing his wife to the US, husband also signed and submitted an I-864 Affidavit in which he promised to provide the sponsored wife with support of at least 125% of federal poverty guidelines. The purpose of the I-864 is to ensure that a sponsored immigrant does not become a welfare recipient. Wife received a US resident visa based on husband’s Petition and after a brief marriage husband filed for divorce. After the filing the parties agreed that husband would pay wife temporary spousal support of $675.00 per month.

However, husband wanted the court to order wife to seek work and to use her best efforts to become self-supporting. Wife objected to the seek work order because she alleged husband had stolen her green card (resident card). She further argued that by signing the I-864 Affidavit husband owed her support for ten years if she was unable to earn sufficient money to equal 125% of the federal poverty guideline. Husband said the I-864 was irrelevant in the State Family Court. The Trial Judge then ordered temporary spousal support for wife and because the parties had a short marriage ordered that wife should mal<e reasonable efforts to get the paperwork to allow her to work and become self-supporting. Five months later husband requested an order terminating spousal support based upon the allegation that wife had made no effort to become employed. Wife again objected and said she still didn’t have a work permit and that husband had promised the US Government in his I-864 Affidavit to support her for ten years.

The Trial Judge then terminated the marriage and terminated spousal support. Wife appealed. The Appellate Court rejected husband’s argument that his obligation pursuant to the I- 864 ended upon divorce and instead held that the sponsored immigrant wife has the right to enforce the I-864 support obligation against her husband sponsor. The Court of Appeals goes on to agree with wife that as a sponsored immigrant her right of support under Federal law exists independent of her right of spousal support under State law and that her rights can be enforced in both the Federal and State Courts. (Kumar at 1081 – 1083).

As one can see, sponsoring an immigrant spouse creates a duty of support which is independent from the Family Code. A subsequent divorce, even a divorce after a short marriage, does not change the support obligation created by Immigration Law. These comments are general in nature and one is advised to consult with a Family Law Attorney or an Immigration Attorney, or both, to determine how immigration law may affect the outcome of a divorce.

If you need more information about spousal support and immigration, please contact our office to schedule a consultation. The Law Office of Bawden & KochisĀ also handles legal issues regarding adoption, annulment, mediation, child custody (with no accompanying domestic violence), child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at officestaff@Richardbawdenlaw.com

Along with his 30-year passion for the law, Family Law Specialist Richard E. Bawden is an avid baseball fan, loves history, and particularly enjoys sampling any kind of donut that is available.