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Importing a spouse and ramifications in divorce court

Posted by Haleh Rashidi | Aug 12, 2017 | 0 Comments

Documents you sign to import a spouse can have ramifications in divorce court.

We have all seen shows like “90 Day Fiancé.” A United States citizen falls for someone from another country, or it could be an arranged marriage, and decides to bring that person to the United States as their spouse. Well, in doing so, United States makes you sign a document called form I-864 (affidavit to support).  The purpose of the document is to make sure you promise to support this person so that they do “not become a public charge.”

In a recent case, decided last week, the Court of Appeal in Marriage of Kumar (2017), in a question of first impression in California, decided that the I-864 form is a contract between the sponsor and the sponsored spouse, and in the event of a dissolution that contract is enforceable in the parties' dissolution action; i.e. they don't need to bring a separate action for breach of contract and they certainly don't need to file a federal lawsuit.

The court needed to go no further than the language off the form itself to reach that conclusion: “If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.” The court further observed that, the “[f]ederal courts have consistently found that a Form I-864 constitutes a legally binding and enforceable contract between sponsor and a sponsored immigrant.”

When does the obligation under I-864 end?

Only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. (See 8 U.S.C. § 1183a(a)(2).) Divorce is not a condition under which the sponsor's obligations under Form I–864 can be terminated.

And as to the question of jurisdiction, “Under federal immigration law, an I–864 affidavit must be ‘legally enforceable against the sponsor by the sponsored alien,' and the sponsor must agree ‘to submit to the jurisdiction of any Federal or State court for the purpose of actions' of enforcement. (8 U.S.C. § 1183a, subd. (a)(1)(B) & (C).)” (emphasis added) . The court further observed that many other jurisdictions – including Kansas, Pennsylvania, Texas, and New Jersey – have reached a similar conclusion.

One mistake that a lot of people make (including some attorneys) is to think that Family Court is a different court than regular Superior Court with different jurisdictions. Family Court is a Superior Court. It is just given a special assignment (i.e. division of labor).  Or as the Kumar court observed, “'family court' refers to the activities of superior court judicial officers handling litigation arising under the Family Code. The ‘family court' is ‘not a separate court with special jurisdiction, but is instead the superior court performing one of its general duties.”

So now attorneys need to be aware that with regards to spousal support, even if dealing with a marriage of short duration, with these types of marriages, the obligation to support may need to continue for at least 10 years per I-864 terms. And the affidavit delineates the terms as to how much.

For advice on this topic or any other family law-related topic please contact our offices at any time.

About the Author

Haleh Rashidi

Haleh's career as a family law attorney started in the chambers of the Honorable Elizabeth Sichel, Riverside County Superior Court Family Law Judge. Working for Judge Sichel gave her invaluable experience and insight into how judges decide cases and hence how to win a case.

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