Affidavit of Support (Form I-864) Factors Into Divorce Proceedings

It says right on the instructions to USCIS Form I-864, the Affidavit of Support that petitioner/sponsors must sign in order to get a green card (lawful permanent residence) for their husband or wife, that “Divorce does not end the sponsorship obligation.”

That obligation is to support the immigration at 125% of the U.S. Poverty Guidelines level, in order that he or she does not have to rely on need-based public assistance. The agreement isn’t forever — it can be ended by the immigrant’s death, change of status to U.S. citizenship, or completion of 40 work quarters (as defined by Social Security; about ten years) in the United States.

But what does that obligation actually mean in practice, and how would it be enforced? A divorcing husband in Pennsylvania put the matter to the test. He managed to win a state divorce court judgment saying that the Affidavit of Support obligation was a civil one, and should not be considered in setting the husband’s spousal support obligation; and moreover, that his soon-to-be-ex-wife’s earning capacity — despite the fact that she had no current job — should be subtracted out of the husband’s support obligation.

But in late 2011, the superior court disagreed. It found that the husband had, by executing the I-864, signed onto a commitment that overrode any state guidelines as to spousal support amounts; and that moreover, only the wife’s actual employment should count toward reaching the 125% of the Poverty Guidelines minimum, not her supposed “earning capacity.”

The (ironically named) case is Love v. Love, Pa. Super. Ct., No 1975 EDA 2010 (J-A08031-11, 12/14/11).