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Raising I-864 in alimony order presents an unfair pickle

A recent case shows the risk when immigrants raise the Form I-864 in the context of family law proceedings. Once again, a family law court has enforced the Form I-864… but only sort of.

CAN WE OR CAN’T WE RAISE THE I-864 IN DIVORCE COURT?

The Form I-864 is required in all family immigration cases. That includes cases where the I-130 was filed by a parent, sibling or child. But it tends to be marriage-based cases where the immigrant ends up wanting to enforce her right to support. Very often, the issue comes up when the parties are in the process of getting divorced.

So, the question naturally comes up: “can you enforce the I-864 in divorce court?” Well, maybe.

Some states, like Washington, say no. Under the Marriage of Khan case, it is clear that a family court does not have to enforce the Form I-864 in a divorce case. But other states say yes. In California, the Marriage of Kumar case says that a judge should enforce the I-864 in family law cases.

In California, that seems to make the it clear. If you have a divorce case, and you are the beneficiary of the Form I-864, you should bring that into your divorce case, right? Not so fast.

THE RISK OF UNDER-ENFORCEMENT.

Marriage of Miller is a recent (unpublished) California appeals case. Marriage of Miller, E067923 (Cal. 4th App. Div. 2, Jun. 11, 2019). There, a Ukranian immigrant used her divorce proceedings to ask for enforcement of a Form I-864 signed by her husband. The Court considered the Form I-864 and ordered payment of $1,480 per month. But only for a limited period of time.

The wife appealed. She argued – and I would have too – that the court made a mistake. The I-864 and federal law is very clear that the support obligation continues potentially forever. It ends only when one of five events occur, such as the death of the immigrant or that she s deported from the United States. For practical terms, it remains enforceable so long as she remains in the United States and is under-employed.

So it’s a bit crazy for a court to say “yes, the I-864 is enforceable, and yes the contract says the obligation continues into the future… but I’m going to limit the duration of support.” But the appeals court in Miller actually agreed with the trial court. It looked to a provision in California law that limits the duration of alimony. A big problem with that approach is that the duration of I-864 support is set by federal law, which supersede California statutes.

Miller isn’t the first family law case to support this weird approach. A similar situation lead to the Marriage of Khan case in Washington State.

YIKES – SO WHAT SHOULD YOU DO?

I don’t know.

The attractive thing about raising the Form I-864 in a divorce case is that you’re already in court. It seems crazy to start a new lawsuit against a sponsor when you are already litigating a divorce. Plus, family law cases usually move a lot faster than federal court. So you have a good chance of getting payments started more quickly in family law court than you do in federal court.

But by seeking an alimony order based on the I-864 you could end up with an artificially-limited duration of support. Like the wife in Miller, you might end up with only a two years of support, for example, when you might be entitled to four years. That’s a scary proposition for someone facing an uncertain future.

An additional consideration is that federal courts will sometimes refuse to hear a claim under the Form I-864 until a family law case between the same parties has been resolved. This is because of something called federal “abstention” doctrines.

I still encourage folks in California to talk to their family law attorneys about the I-864. For a lot of people, it does make sense to get a temporary maintenance order relatively quickly, rather than to head into federal court. But you have to do this knowing that – like the wife in Miller – you might get less than you really deserve.

Greg McLawsen

Greg is recognized as the leading national authority on enforcement of the Form I-864, Affidavit of Support. Greg represents low-income green card holders in lawsuits to recover support from their sponsors. Practicing family-based immigration law, Greg also focuses on helping married and engaged couples with U.S. immigration.

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