Alimony In Divorce Cases For Immigrant Spouses

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When you sign a USCIS I-864 Affidavit to sponsor an immigrant to the United States, you are swearing to provide financial support to said immigrant for the length of ten years at a certain level above the poverty guideline.  A recent California case, In re Marriage of Kumar, the Court found that the federal obligation to provide financial support under I-864 is enforceable in state court family law proceedings, ie., divorce case.  Further, the court found that the immigrant does not have a duty to mitigate damages under the law.

In In re Marriage of Kumar, the husband sponsored his new wife to come to the United States from Fiji. In this process, he executed form USCIS I-864 which requires him to provide financial support to his wife for ten years at an income level of at least 125% of the Federal Poverty Guidelines.

Shortly thereafter, the husband filed for divorce and the wife sought alimony payment from him.  The trial court ordered temporary spousal support, but subsequently terminated the support order on the ground that the wife failed to use her best effort to find work.  The wife appealed and the Court of Appeals reversed and remanded the case.  The justices held that the support obligation of I-864 can be enforceable in a state court proceeding and the immigrant does not have a duty to mitigate damages by seeking employment.

The policy behind the support obligation of form I-864 is to prevent immigrants from becoming public charges.  Thus, if an immigrant is required to find a job or risk losing financial support from the sponsor, that policy will be rendered meaningless.

Summary: the federal support obligation of I-864 is wholly separate from state alimony law.  Even if a spouse immigrant is denied alimony in divorce proceeding, she or he can seek support as set out under form I-864.  Further, the spouse immigrant has no obligation to find a job (which is a requirement for alimony in California) to obtain support under form I-864.

 

 

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