Friday, February 13, 2015

Marital And Family Law: The Pitfall Of International Love

By Sema Yildirim

It is important for family law attorneys to be aware of the potential federal support requirements that arise when a U.S. citizen marries a foreign national. Under the U.S. Citizenship and Immigration Services’ application process, a U.S. citizen who marries a foreign national is required to execute an I-865 affidavit of support to obtain lawful permanent residence for the foreign spouse. In this affidavit, the U.S. citizen must promise to “provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.” 8 U.S.C.S. § 1183a. (1)(A) (2014). Currently, this means an obligation of paying $1,216 per month to the estranged or former spouse should the marriage fail.

Under section 1183a(e), the affidavit may be enforced by the sponsored alien, the U.S. government, or state or local administrators, and its enforceability survives divorce. Iannuzelli v. Lovett, 981 So. 2d 557, 559 (Fla. 3d DCA 2008). Few know that the support obligations under the federal I-865 affidavit may never terminate unless the alien spouse: (i) becomes a citizen of the United States; (ii) has worked, or can be credited with, 40 qualifying quarters of coverage under title II of the Social Security Act; (iii) ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States; (iv) obtains a new grant or adjustment of status in a removal proceeding; or (v) dies. 8 C.F.R. § 213a.2(e)(2)(i) (2014).

It will come as a relief to those who have lost their international love that courts have held that the affiant is not bound to pay the sponsored spouse 125 percent of the federal poverty level for a lifetime if that sponsored spouse “is earning or is capable of earning that amount or more,” and therefore has no need for continued support. Ainsworth v. Ainsworth, 2004 WL5219037 (M.D. La. May 27, 2004). Therefore, if a former foreign national spouse seeks payment under the affidavit via a court action, the court has the discretion to impute income to that spouse if he or she is unemployed or underemployed. In addition, since the I-865 affidavit is an enforceable contract and courts have held that “the duty to mitigate, or avoid, damages is a basic tenant of contract law,” the party seeking relief has a duty to mitigate damages. Stump v. Stump, 2005 WL1290658 (N.D. Ind. May 27, 2005). But that duty may be satisfied where the foreign spouse is not currently employed but has made reasonable efforts to be self-sufficient. Id. 

It is impossible to discuss all of the legal implications that your clients can face when they marry and/or divorce a foreign national, so consultation with an immigration attorney is highly recommended.