close

Blogs > Matrimonial & Family Law Blog

To Marry an Immigrant? Possible Financial Consequences: The Power of the Prenuptial Agreement and Ramifications of the Affidavit of Support

Business divorce

John just turned 33.  Born in New Jersey, a college graduate, and, with a pretty decent professional job.  Bored, John joins ChristianMingle.com.  A few days later, June from Australia sends him a direct message.  He responds.  She talks about her life, her dreams, and how much she loves America.  June sends John a picture.  Immediately, he falls in love.  Hundreds of thousands of messages later, John proposes to June.  Of course, June accepts; the two marry 48 hours later.  June relocates to the United States, entering as a lawful permanent resident, or, with a “green card.” During the green card process, John, who is still in lust over June, signs all kinds of documents, including the petition to sponsor June and a contract between John and the United States Government that requires John to prevent June from becoming a “public charge.”  That contract is Form I-864, Affidavit of Support.

June is granted lawful permanent residence in 2000.  Six years later, John is COO of a huge pharma company—earning millions.  The prior year, John and June each caught the other having an affair, and a divorce followed.  Without a prenup, John battled for about a year, but settled with June for a relatively small amount of money compared to his overall net worth.

Happy at the end of his marriage to June and thinking he “got off paying nothing,” John remarried a few days later.  June and John did not talk after that.

Proud of her Australian background, June never became a naturalized citizen of the United States.  She did, however, fall in with a “bad crew” and began committing welfare fraud.  In the three years that followed the divorce, June brought in over $10,000,000 in SSI, SNAP, TANF, Housing, Cash, and Medicaid benefits.  The crew gets busted.  June cooperated and got off free of any charges.  The $10,000,000 was nowhere to be found.A day shy of June’s tenth anniversary as a green card holder, John picks up a certified letter. In it, a bill from the United States government for $18,166,966.99 (the $10m, plus another $8.16m in interest).John’s worth is just over $10,000,000.  He calls the 800# on the letter.  A person from Arizona answers and tells him that he is out of luck because he signed a contract.  What Contract?  The Affidavit of Support.

While the story of John and June is completely made up, federal, state, and local government enforcement of the Affidavit of Support has increased in recent years.  Spouses and others who sign the Affidavit of Support for parents, siblings, or even as joint sponsors for friends, have been held accountable for hundreds of thousands of dollars in repayments for benefits the intending immigrant may receive for 10 years.  These repayments are often ordered and judgments are entered after civil litigation.  Adding to the repayments are legal fees, huge interest and penalties, and possibly, a judgment with the United States Government as the creditor (similar to a federal tax lien).

The Affidavit of Support

The Department of Homeland Security requires spouses, parents petitioning children, children petitioning parents, and others petitioning spouses, fiancées, friends, employees, and other immigrants and non-immigrants, to enter the United States.  It is a contract between the United States Government and the United States Citizen or lawful permanent resident petitioner.

When signed, the agreement requires the sponsor to financially support the immigrant from the sponsor’s own resources.  It requires the sponsor to reimburse any federal, state, or local agency for any “means-based” public benefits that were provided to the immigrant.

To prove that the sponsor has the financial means to support the immigrant, immigration officials require letters of current employment and federal income tax returns for the previous three years.  The sponsor must meet certain income thresholds that are adjusted annually to qualify as a financial sponsor.  If the threshold is a penny short, the immigration process and family separation is further prolonged, delayed, or denied.

The term of this agreement: the earlier of 10 Years or the date the immigrant naturalizes (becomes a United States citizen).

The Affidavit of Support is enforced through civil proceedings and is the equivalent of a federal tax lien.  The possible effects are many and long term.

It is critical in a divorce case to address the issue when one party may have executed an Affidavit of Support on behalf of their spouse. Most divorce cases settle when the parties execute a Marital Settlement Agreement. Therefore, it is crucial that this Marital Settlement Agreement provides for allocating the responsibility of Affidavit-related expenses, debts, and liens, and determining which party will be responsible for such expenses, post-divorce. Once the parties have agreed upon an allocation, and which party will be responsible for these expenses, should they arise, the responsible party must indemnify and hold the other party harmless from any resulting liability.

While this Agreement between the parties is binding, once executed, it is not binding on the government. Therefore, if the government seeks to enforce the Affidavit of Support, this may result in more litigation between the parties. Regardless, it is critical to address the financial responsibility of an Affidavit of Support as part of your divorce settlement. Prior to the marriage, parties may also address any future financial responsibility as a result of the Affidavit as part of a Prenuptial Agreement.

The Affidavit of Support can also prove problematic when addressing the financial aspects of the divorce, such as alimony and child support. For example, if the Affidavit of Support acknowledges one party’s commitment to support the other, this may become extremely helpful evidence for the spouse seeking support, as this information may be used as a basis for support, post-judgment. There clearly are long-term consequences to executing the Affidavit.

If you have any questions or concerns about this post, please contact Jeralyn Lawrence, Chair of the Matrimonial & Family Law Practice Group, at jllawrence@nmmlaw.com, Rita Aquilio, Member of the Matrimonial & Family Law Practice Group, at rmaquilio@nmmlaw.com, or Ray Lahoud, Chair of the Immigration Law Practice Group, at rglahoud@nmmlaw.com.