Foreign Spouse Support

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Do I Have To Support My Immigrant Spouse In An Illinois Divorce?

Foreign Spouse Support

Marriage to an American citizen is the most common path to U.S. residency for foreign nationals, with more than 2.3 million foreign nationals gaining lawful permanent resident status via marriage between 1998 and 2007.

What obligations does an American citizen have to their foreign spouse after an Illinois divorce?

Foreign Spouses Are Entitled To Support In An Illinois Divorce

In every Illinois divorce “[t]he court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors” 750 ILCS 5/504

If a maintenance award is deemed appropriate, guidelines maintenance will be applied which is “calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/504(b-1)(A)(1)

But the court does not have to follow those guidelines. “The court is not required to order maintenance in accordance with the statutory guidelines.” In re Marriage of Hamilton, 2019 IL App (5th) 170295

When the court does not follow guidelines, the court needs to state why it did not follow guidelines. That means that if you’re asking the court to not follow guidelines, you must give the court a reason.

“In each case involving the issue of maintenance, the court shall make specific findings of fact, as follows: (1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section;” 750 ILCS 504(b-2)

When dealing with a foreign spouse, awarding them the standard American maintenance (formerly known as alimony) might not make sense. Especially if the foreign spouse has moved back to their native country.

If the spouse has moved back to their foreign country, the court can ask that maintenance be reduced based on “the needs of each party” 750 ILCS 5/504(a)(2)

Of course, this would only apply if the foreign spouse was living in a country where it was very affordable to live.

There is another factor that could require you to support your foreign spouse: “any valid agreement of the parties” 750 ILCS 5/504(a)(13). Almost everyone with a foreign spouse has signed an agreement: The Affidavit of Support.

The Affidavit Of Support After An Illinois Divorce

When an American citizen brings their foreign spouse to the United States they fill out a Form I864, the Affidavit of Support.

“Any alien who seeks admission or adjustment of status under a visa number issued under section 1151(b)(2) or 1153(a) of this title is inadmissible under this paragraph unless—

…the person petitioning for the alien’s admission (and any additional sponsor required under section 1183a(f) of this title or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affidavit of support described in section 1183a of this title with respect to such alien.” 8 U.S.C. § 1182(a)(4)(C)

By signing an affidavit of support the “sponsor agrees 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. § 1183(a)(1)(A)

The Affidavit Of Support warns the sponsor of as much “The I-864 Affidavit further warns applicants that “If the immigrant sponsored in this affidavit does receive one of the designated Federal, state or local means-tested public benefits, the agency providing the benefit may request that you repay the cost of those benefits. That agency can sue you if the cost of the benefits provided is not repaid.” Affidavit of Support, Form I864

The Affidavit of Support is enforceable for 10 years. “An affidavit of support is not enforceable after such time as the alien (i) has worked 40 qualifying quarters.” 8 U.S.C. § 1183(a)(3)(B)(i)

Because they refer to the spouse as an alien, that means the affidavit of support is no longer enforceable when the spouse is no longer an alien but is, rather, a lawful permanent resident.

The instructions for Form I-864 inform us of such. “The obligation also ends if you or the sponsored immigrant dies or if the sponsored immigrant ceases to be a lawful permanent resident” Affidavit of Support, Form I864

The Affidavit of Support obligation also ceases if “such spouse is deceased” 8 U.S.C. § 1183(a)(3)(B)(ii)

Divorce does NOT cease a spouse’s obligation to their foreign spouse, however. ‘Courts have also held that the sponsored immigrant’s right to support under the Form 1-864 affidavit of support is unaffected by a judgment of divorce”  Moody v. Sorokina, 40 A.D.3d 14, 830 N.Y.S.2d 399 (2007)

“[U]nder federal law, neither a divorce judgment nor a premarital agreement may terminate an obligation of support.” Erler v. Erler, 824 F. 3d 1173 – Court of Appeals, 9th Circuit 2016

The law allows the foreign immigrant spouse to sue the American sponsor spouse for the support they were promised under the Affidavit of Support.

The Affidavit of Support is a contract “that is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision of such State)” 8 U.S.C. § 1183(a)(1)(B)

“While a form I-864 affidavit is a contract between the sponsor and the United States Government, the sponsored immigrant may bring a lawsuit to enforce it as the named, third-party beneficiary.” Wenfang Liu v. Mund, 748 F. Supp. 2d 958 – Dist. Court, WD Wisconsin 2010

The Immigration and Nationality Act authorizes suit “in any appropriate court … by a sponsored alien” “to enforce an affidavit of support executed under” 8 U.S.C. § 1183a(e)

Futhermore, a sponsor may also be held liable for attorney fees, other costs of collection, and “corresponding remedies available under State law.” See 8 U.S.C. § 1183a(c)

What is an appropriate court of law? The domestic relations court seems like an appropriate venue but there is no instance in the Illinois appellate courts of a domestic relations court enforcing support via the Affidavit of Support.

I, personally, think that domestic relations court can consider and enforce an Affidavit of Support because the only alternative would be federal court…and federal courts hate divorce.

“The last thing federal courts need is to be dragged into domestic-relations disputes.” Wenfang Liu v. Mund, 686 F. 3d 418 – Court of Appeals, 7th Circuit 2012

How Much Support Must Be Paid Via The Affidavit Of Support

The law requires that by signing the Affidavit of Support the “sponsor agrees 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. § 1183(a)(1)(A)

As of the writing of this article, 125 percent of the Federal poverty line for one person is $ 16,100 a year or $ 1341.61 a month.

The statute says “not less” so you can always ask the court for more. Furthermore, the actual I864 Form says “Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household”

So, the immigrant spouse can ask for the stars and get the moon.

Divorce law or other awards of maintenance in state court have no impact on the right to ask for and the amount of support under the affidavit of support.

The right of support conferred by federal law exists apart from whatever rights [a foreign spouse] might or might not have under…divorce law.” Wenfang Liu v. Mund, 686 F. 3d 418 – Court of Appeals, 7th Circuit 2012

So, a foreign spouse can ask for maintenance and additional support under the Affidavit of Support. This is made clear by the fact that the foreign spouse has no duty to get a job in order to mitigate the obligation of the American spouse.  Wenfang Liu v. Mund, 686 F. 3d 418 – Court of Appeals, 7th Circuit 2012

How To Avoid Paying Support To A Foreign Spouse Under The Affidavit Of Support

Illinois divorce courts are not in the habit of enforcing federal law…and Illinois courts don’t have to enforce Federal law if they believe another court (such as a federal court) would be better suited to handle the matter.

“[A] court which has jurisdiction over the parties and the subject matter involved may nevertheless decline jurisdiction of a case when it is apparent that trial in another forum with jurisdiction over the parties would be more convenient and would better serve the ends of justice.” Vinson v. Allstate, 579 NE 2d 857 – Ill: Supreme Court 1991

So, ask the court to simply decline jurisdiction and advise that no Illinois state court has ever adjudicated on this matter while several federal courts have been willing to exercise jurisdiction over the obligation created by an Affidavit of Support. See Cook County Domestic Relations case 14 D 97, Padilla vs. Padilla.

Few people will be willing or able to subsequently prosecute their claim for support in Federal court after being denied jurisdiction to do so in an Illinois domestic relations court…unless they read this article as well and now know what they must do.

If a court does decline jurisdiction over an I-864 support claim, there is case law that says the court must address such matters. “There is no argument to be made that the federal court can better assess a claim for breach of an obligation under Form I-864. A state court is as capable as a federal court of addressing the contact issue raised by such a claim.” In re Marriage of Bychina, 2021 IL App (2d) 200303

If you signed an Affidavit of Support in order to bring your foreign spouse to the United States, you may have an exceedingly complicated divorce case.

If your spouse signed an Affidavit of Support in order to bring you to the United States, you may have an additional claim for support during or apart from your Illinois divorce case.

Either way, contact my Chicago, Illinois family law office to learn more about your rights and defenses in your Illinois divorce.