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Ongoing Obligation Under I-864 Affidavit of Support after Texas Divorce

In many cases, when a person seeks to obtain lawful permanent resident status in the United States, also known as a green card, they must have a sponsor who agrees to support them.  If the person is moving to the United States as a spouse of or to marry a lawful permanent resident or a U.S. citizen, the spouse often serves as the sponsor.  The sponsor must sign a Form I-864 Affidavit of Support, which is a legally enforceable contract in which the sponsor agrees to use their financial resources to support the person who intends to immigrate.  After the person becomes a lawful permanent resident, the sponsor’s support obligation generally continues until one of the specified conditions is met, including the immigrant becoming a US citizen or earning 40 work quarters toward Social Security.  Divorce is not one of the conditions that relieves the sponsor of his or her support obligation.  Therefore, the support obligation may become an issue in a Texas divorce involving an immigrant who has not become a US citizen.

The support obligation was at issue in a recent case.  The wife had moved to the United States from Mexico to be with the husband in 2014. They married in June 2016.  The husband signed an I-864 affidavit of support in August 2016, agreeing to provide the wife with any support needed to keep her income level at at least 125% of the federal poverty level.  The wife later became a lawful permanent resident.

The husband filed for divorce in July 2017.  In her counterpetition, the wife asked the court to order the husband “to support her under his federal contractual obligation” based on the form I-864.  The trial court heard evidence and granted the divorce, but took the issue of the husband’s obligation pursuant to the I-864 affidavit under advisement to review the case law submitted by the parties.  The court held multiple hearings on the issue.

At the June 2018 hearing, the wife’s attorney identified the support obligation and arrearages as issues still pending.  The trial court and the husband’s attorney both noted that the issue of arrearages had not previously been raised.  The court also pointed out that it had not heard any evidence regarding arrearages.

The court held another hearing in November 2018.  The court found the husband was obligated to continue supporting the wife pursuant to the I-864 affidavit of support.  Mitigation and the effect of the wife’s income on the support obligation were discussed.  The wife’s attorney stated the wife did not have a current income, though she had jobs off and on since the separation. After another hearing, the court signed the final divorce decree in January 2019.  The decree ordered the husband to pay the wife $1,265 per month with the first payment due December 1, 2018.

The wife appealed, arguing the court erred in denying her arrearages.  The appeals court found the wife had failed to raise the issue in her pleadings and could therefore not complain about the court’s failure to award the arrearages.

The wife also argued the court erred in not awarding her attorney’s fees.  The appeals court found, however, that the wife’s pleadings did not seek to enforce the affidavit of support as to any arrearages, and the pleadings could not seek enforcement of amounts that were required to be paid in the future because they were not yet owed.  The appeals court noted the wife’s pleadings “basically requested declaratory relief relating to [the husband’s] post-divorce obligations under the affidavit.”

The appeals court also noted in a footnote that no evidence was heard regarding the amount of the wife’s income during the separation.  Because the sponsor’s obligation is reduced by the amount of the sponsored immigrant’s income, the appeals court stated it could not find the court had erred in failing to award arrears without evidence of the wife’s income showing that she earned less than 125% of the federal poverty line.

The appeals court affirmed the final divorce decree.

Although the appeals court did not award the wife arrearages and attorney’s fees, it suggested they may be available in a case where they are specifically requested in the pleadings.  If you are facing a divorce involving an I-864 affidavit of support, you need an experienced Texas divorce attorney on your side.  Call McClure Law Group at 214.692.8200.

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