I-864 Defense and Divorce

In the case of a divorce involving a United States citizen (USC) and  lawful permanent resident (LPR) spouse , it is essential to understand the differences between alimony and I-864 support. Here is a breakdown of their differences:

Alimony:

1. Purpose: Alimony is a financial support obligation that one spouse may be required to pay to the other following a divorce. It is designed to assist the lower-earning or non-working spouse in maintaining a similar standard of living to what they had during the marriage.

2. Legal Basis: The specifics of alimony vary by jurisdiction, as laws governing divorce and spousal support are state-specific in the U.S. Factors such as the length of the marriage, the couple’s financial situation, and the needs of the receiving spouse are typically considered in determining alimony.

3. Duration: Alimony can be awarded for a specific period (temporary) or indefinitely (permanent) based on the circumstances of the divorce and the laws of the state.

I-864 Support (Affidavit of Support):

1. Purpose: The I-864 is an immigration form used in the U.S. It is a legally binding contract that an individual (often a sponsor) submits to demonstrate financial support for an immigrant who is applying for a visa or green card. It ensures that the immigrant will not become dependent on government resources.

2. Legal Basis: The I-864 is governed by federal immigration law rather than state law. The sponsor agrees to support the immigrant at an income level above the federal poverty line.

3. Duration: The obligation under the I-864 continues until the immigrant becomes a U.S. citizen, can be credited with 40 quarters of work (about 10 years), or dies. In some cases, this obligation may continue even after divorce.

Key Differences:

• Nature and Purpose: Alimony is typically financial support related to marriage dissolution, while the I-864 supports immigration and ensures that an immigrant will not rely on public assistance.

• Obligations: Alimony obligations can end with divorce and may be influenced by state law; I-864 obligations are federal, lasting longer than the marriage in many cases, and typically do not terminate with divorce.

Key Considerations:

• Prenuptial Agreements:  The prenup can limit or eliminate any alimony requirement pursuant to state law. The prenup does not cancel out the obligation of support based on the I-864 Affidavit of Suppport. However, the prenup will cap the amount owed based on the I-864. When an American citizen with income and assets that exceed any potential liability under the I-864, a prenup is suggested.  An American citizen may want to have a prenup to proptect any future earnings or assets received such as inheritance during the marriage.

• A prenup may be more than a financial agreement. A prenup may be a contract where the immigrant spouse agrees to terms other than financial.  As an example; the immigrant agrees to go to school to learn English, apply for naturalization when qualified, find and maintain employment…. in return the American citizen spouse agrees to terms. In the event the contract is breached and the immigrant seeks immigration alimony, the USC may have recourse in breach of contract and be entitled to be reimburded for any support. The possibilities are endless. Each situation requires an individual analysis.

• Offset : Any income and some assets that the LPR receives is subracted from the USC’s support obligation. What is considered income is broadly determined. A good general princial is any income, money, support, that the LPR receives and s/he is not requred to pay it back is income. Assets are assets that are liquid. Mnay people think that income is only what is claimed on a persons taxes This is incorrect in considering support based on the I-864.

• Discovery: Discovery is the process in a divorce or any lawsuit where one party provides relevant information and supporting documents to the other party upon request. Many palintiff’s are under the impression that they can demand support from a USC and have no obligation to prove anything. At Mulder Law, through the process of discovery I require a plaitiff to prove every dime that she thinks my client owes her.

  • The amount of alimony that may be awarded is based primarily on three factors supported by evidence presented:

1. The length of the marriage,

2. The standard of living established for the plaintiff by the defendant during the marriage

3. The income and assets of the plaintiff and the defendant.

In contrast to alimony, The amount of I-864 support is strictly established by statute regardless of the defendant’s income or assets. HOWEVER, “immigration alimony” is offset by any income or assets that the plaintiff has or earns. Income is liberally determined and case law states that the plaintiff is not entitled to a windfall. The maximum income that the plaintiff is entitled to in the form of “immigration alimony” is 125% of the federal poverty guideline. It is generally impossible to live off of this amount of money. The plaintiff is likely getting support that can be considered income from somewhere. The defendant is entitled to an offset of that income.

At Mulder Law the majority of cases involve a plaintiff that is outright lieing and cheating to attempt to collect from a number of sourses or a plaintiff who honsetly believes s/he is entitled but s/he is not.

Mulder Law has been 100% successful in defending American citizens sued for “immigration alimony.” This does not mean that we will be successful in defending you. My record demonstrates my  knowledge of your rights.