Options for Enforcing Immigration Support Obligations in Divorce

Family law attorneys often do not realize that when they have clients who are immigrants, they have options for enforcing the Form I-864 Affidavit of Support against a divorcing spouse. While enforcing obligations in federal court is sometimes the most effective option, it is far from the only option. The support obligations can be enforced in state family law court as well.

State Courts Have the Power to Enforce an Affidavit of Support

Many attorneys mistakenly believe that only federal courts can enforce the I-864 support affidavit. However, this is not true in theory or practice. Form I-864 represents a contract between the sponsor and the U.S. government. The immigrant being sponsored is a third party beneficiary of that contract, and they have the legal ability to enforce that contract. State courts handle contractual matters regularly.

Unless a federal statute specifically states that claims under a law must be heard in federal court, then a state court of general jurisdiction has the authority to enforce federal statutes. Although family courts are often viewed differently, they are part of the state’s general court system. Nothing in the federal statutes pertaining to Form I-864 limits jurisdiction to federal courts only. Therefore, state courts, including family law courts, are authorized to enforce Form I-864 obligations.

Two Ways to Enforce Form I-864 in Divorce Cases

In many states, including Florida, an alimony order can be used to enforce Form I-864 support obligations. While this may seem like an ideal solution, there are some potential drawbacks. The obligations described in federal law are quite specific, but when approached in conjunction with alimony rules, levels of support may be weakened.

For instance, Form I-864 obligates the sponsor to provide support to an immigrant at 125% of the U.S. poverty guidelines until the immigrant becomes a citizen, dies, leaves the U.S., or works long enough to earn 40 work credits toward Social Security, which takes approximately ten years. However, a family law judge may look at many factors such as the length of the marriage and the immigrant’s earning potential and decide that the amount of alimony should be less or that support payments do not need to continue as long as Form I-864 requires. In other words, enforcement of obligations through alimony may provide only partial relief.

A second option is to enforce Form I-864 as a contractual obligation. Because the divorce case and the contract case involve the same parties and very similar facts, an attorney could add the contractual claim through permissive joinder. This could enable the immigrant spouse to receive support at the full amount for the full duration required under I-864 requirements.

Help with Strategies for Obtaining Support

The rules regarding sponsorship support obligations and other immigration issues can be complex and nuanced in application. If you have a client entitled to I-864 support or have questions about how any other areas of immigration law could affect one of your clients, I would be happy to work with you to ensure that your client is able to take advantage of the best opportunities to move forward. Just contact me at your convenience.