Initial Post – Case History

October 13, 2008

I am an American, who got married in October 06 and separated in June 08, and am currently in the process of a divorce from an Eastern European woman. My purpose of starting this blog is to educate Americans about the extreme financial dangers of sponsoring a foreign spouse, and to potentially gather relevant and timely information to share with other sponsors, in order to perhaps mitigate some of the financial damage.

The root of the problem is the Affidavit of Support I-864, which requires the sponsor (American citizen) to pay the separated or divorced foreign spouse at least 125% of the poverty level for their family size for an indefinite period of time, but at least 10 years (40 “qualifying quarters” for social security purposes) from the date of the marriage. Divorce unfortunately does not eliminate or reduce this obligation. The only things that terminate a sponsor’s liability to pay is their death, or the death of the foreign spouse, or if the foreign spouse leaves the country permanently, or if the foreign spouse becomes a U.S. citizen (but by doing this their support stops, so there is no financial incentive for them to do that).

So, the bottom line is that this federal immigration form completely supercedes state family law on post-separation support or alimony issues. Whereas most state courts in a divorce case would rule on PSS or alimony support issues based on the length of a marriage, or the education level of the lower-income spouse, etc., many divorce attorneys are now using this Affidavit of Support to win much larger and longer settlements than what they would be normally entitled to under their own state family court system. This in inherently unfair and punitive to the American citizen who sponsored them, and is also unfair to the millions of divorced Americans who received little or no PSS and/or alimony. If they only had a passport or citizenship from a foreign country, then they would be entitled to easily receive about 10 years of support, even if they had only been married for 6 months!

The only slight “good” that has evolved from case law on the matter is that the foreign spouse is somewhat required to make a good faith effort to mitigate the damage by trying to obtain gainful employment, and by the fact that whatever they do end up making goes towards satisfying the 125% support payments, so that there is a 100% “offset” on what the American has to pay. However, due to the 100% offset of income, it completely eliminates the financial incentive for the foreign spouse to seek employment (unless they are motivated enought, and able to, obtain employment at a much higher level than 125% of the poverty level).

Furthermore, it is unclear to me how the courts have enforced, or would enforce, how hard the foreign spouse tried to obtain employment, or the mechanics of the settlement of the difference between the 125% level and what they actually earned. It seems to me like the court would have to set up a yearly “review” in order to examine those employment efforts, as well as the documentation of income earned, in order to determine how much the American spouse needs to pay each year.  And for that to be accurate, such a system would have to be “retroactive”, not prospective. But I am as of yet unaware of how the court system in different parts of the country have dealt with the mechanics of that.

I look forward to hearing from one and all!

June 1, 2010

I am the moderator of this blog, and this is my response to Busy Bee and ClaireBear and others who are foreign spouses and have been victims of American spouses who treated them very badly. Most likely both Busy Bee and ClaireBear will go after their American ex-spouses under the Affidavit of Support law, and clearly they feel there is a need for this law, and sometimes very good circumstances to use it.

Here’s my take on this, and here again, this is why I started this blog in the first place. I firmly believe the law goes way too far against American spouses, and I believe that it is simply the wrong way to address this issue.

In the USA, divorce (“Family”) law is governed by the STATES, not the Federal Government. The federal government should not get involved with state law. Period. When you have a situation of an abusive spouse, or an unreasonable spouse, or whatever, regardless of your nationality, and regardless of their nationality, you can, and should, go to your local state courts to address the situation, and get financial and legal relief. You don’t need to use the Affidavit of Support. State courts will look at your situation the same as any other resident, and award alimony, child support and  equitable distribution according to the particular circumstances of your case.

If foreign spouses continue to use the Affidavit of Support, which potentially is a life-long, open-ended, poorly written contract, (lasting at least 10 years), it is a flagrant abuse against Americans, and is grossly unfair in its length, terms, etc. In fact, it continues to be enforceable even if the foreign spouse re-marries!!

That’s just plain wrong and unfair. The Affidavit of Support needs to be abolished completely, or at the very least, re-written to be much fairer to Americans. For example, it could be re-written to do what Congress originally intended it to do, and that is, simply reimburse the government in the event that a government agency has to dole out some form of financial support to a foreigner that an American brought to this country. That would be fair.

Or, it could also be worded in such as way that it could provide reasonable guidelines for minimum support payments for a certain time period that could be a backup in the event where a foreign spouse feels that they have not received a fair deal in state court. Provided however, that the amount of the payments, the duration of such payments, and conditions for ending the payments (ie. re-marriage) would be re-written as well, and would look to the various state court decisions to see what would be reasonable.

That kind of re-wording of the Affidavit of Support document language I could see as a reasonable compromise, and something I could support. But I cannot, and will not, support the Affidavit the way it is written now, and the way it is currently being used against Americans in court.

February 3, 2010

Peter and Julie:

You are both correct in that I, as the moderator of this blog, have focused exclusively up until now on how I believe this Affidavit of Support law to be hopelessly and absurdly unfair to Americans, and have not publicly said that it actually makes sense for, or is fair to, foreign citizens.  Certainly there are some good points foreigners could make, such as the American citizen in effect “lured” them to abandon their family and friends and job to come to the USA and marry them, and that they do not understand completely or know their way around the U.S. legal system, and that possibly the American spouse was the one guilty of lying, or misrepresentation, or worse, like abuse, and so on.  All of that is completely true.  I’m sure your particular cases are not unique, and most likely you will try (and quite possibly succeed) in finding a good attorney and use the Affidavit of Support in order to get some income out of the American spouse, at least until you can get on your feet.

However, I still firmly believe that the PATH of using the Affidavit of Support is the wrong path, and it is a grossly unfair law to the American citizen. Rather, what non-Americans need to understand is that Family Law has a long and deep tradition in STATE courts, and has no place being superimposed by a Federal court, or a State court using a Federal law outside of its original intent.

Let’s not forget Congress’s initial intent, and that was to simply protect the American taxpayers from absorbing the cost of other Americans marrying foreigners, and then having those same foreigners end up on the street, and some governmental agency has to disburse funds or provide services, etc.  So, THAT was the original intent of the law – to make sure that the Federal government had a mechanism of collecting any funds that it had to disburse on the account of foreign spouses back to the American that married them to begin with, and not having just the general public pay for those costs. And that part of the law I understand, and agree with the theory of it.

But they wrote it poorly, and the result is that unscrupulous (but creative) attorneys found the loophole, and began using it as a simple, but very effective, tool to get the State courts to award alimony to the foreign citizens for at least 10 years, and in some cases a lifetime!

So, that I cannot agree with. So, what to do?

Here’s what I say – Peter and Julie – hire a good attorney, and take your cases to the STATE family law court to try to get the appropriate award for alimony, equitable distribution, etc. You may very well end up with more money using that route in your particular cases, although probably nowhere close to the length of time under the Affidavit of Support.

Under state law the courts in each state follow their particular laws, and generally speaking, they look to factors such as who makes more money; who has done what to whom; whose income potential is greater; how long was the marriage, were there children born of the marriage, and so on, and then make their determination of who should pay who what, and for how long.

And by doing that for ALL residents, whether citizens or foreigners, it then levels the playing field, and then everyone abides by the same set of rules. That’s the fair thing to do. Just because someone has a passport from some country other than the U.S.  should NOT give them rights over and above what native citizens have. Period.

So, that’s wraps up my argument on your points. There is a place for the Affidavit of Support, and that is exclusively for recouping funds from Americans that the government has had to spend on their foreign spouses. And there is a place for foreigners to sue American spouses for financial support and equitable distribution, and that has been in place for a very long period of time, and that is in each state’s respective Family Court, using time-tested Family Law.

Remarriage Issue

January 18, 2010

Wow! I had forgotten about that remarriage issue. As the previous post says, despite “normal” divorce law that stipulates that alimony stops upon remarriage, the Affidavit of Support payments continue on despite remarriage. Which is unbelievably unjust and cruel.

And in his case, where his ex-wife got remarried after a short marriage to him, and remarried a wealthy man, he STILL has to pay.

If it was me though, I would fight that one in court. In my home state of NC, I just can’t believe that under these circumstances an appeal court wouldn’t strike that down. Also, I can’t see why a wealthy man married to such a woman would bother to go to court for $15 – 20K a year in payments. He probably would just drop the case.

But let’s also discuss the “lifetime” issue. The attorneys that I have consulted with have told me that the 40 quarters of time begins to start once the foreign spouse gets married the first time, provided the American spouse makes enough to be considered “qualified” income. That’s because from a tax standpoint “family” income must be considered, especially if they file joint tax returns. But even if they don’t file joint returns, I think the “family income” concept would apply, and all the quarters that the American spouse #1 qualified for, plus all the quarters that American spouse #2 qualifies for, all begin to count to deduct from the 40 quarters overall, so clearly in this case one is not looking at a lifetime obligation.

But that’s just my educated guess. As I say, I would fight that in lower court, and if necessary, appeals court, since it’s so grossly unfair.

Good luck!

And once again I appeal to all to write our lawmakers to change this ridiculous Affidavit of Support.

December 17, 2009

Dre:

Sorry to hear about your situation too. Unfortunately I think it will happen more and more, since foreign spouses are becoming more aware of the court precedents in this area of law, which are all in favor of the foreign spouse.  My case finally got settled out of court, but the bottom line is that I had to “buy” my way out of a potentially very long-term alimony situation with a lump sum settlement.

Long term we Americans need to try to find some organizations that would be willing to help finance the legal costs of fighting this ridiculous and unfair law, and then perhaps eventually we will win an appeal court decision, and that could turn the tide, once everyone really sees how unfair this is.

Another strategy would be to appeal to our lawmakers in Congress to change the Affidavit of Support document itself, but given their current state of affairs, I don’t see that as being a realistic outcome…

Anyway, once again I make an appeal to any and all Americans facing this situation to share any knowledge they have through this and other blogs.

Good luck Dre!

tkemery


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