Friday, November 11, 2005

Case Law Development: Another Kind of Maintenance: Affidavits of Support from Individuals Sponsoring Immigrants

Divorce between nationals and immigrants present a wide array of complexities.  Here is yet another one:  the enforcement of an affidavit of support pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. ยง1183a.

Wife, a Russian citizen, entered the United States on a fiancee visa. Shortly thereafter, she married Husband. Husband signed an Affidavit of Support, Form I-864, as part of the Wife's application for adjustment of status. He agreed to provide Wife whatever support was necessary to maintain her at an income that is at least 125% of the federal poverty guidelines, as consideration for Wife's application not being denied on the grounds that she was an immigrant likely to become a public charge.  A little over a year later, the couple were divorced.  In a separate action, Wife sued to recover from Husband under the affidavit of support.  The court granted Wife's motion for summary judgment on liability and proceeded to trial on the issue of damages.  The trial court determined that Husband should pay Wife a sum equal to 125% of the poverty level for a single person.

Husband argued that Wife should not recover under the Affidavit of Support because she failed to mitigate her damages when she did not request maintenance during the divorce proceedings and did not make a good faith effort to procure employment.  The court rejected all these arguments.  The court held that Wife was within her rights to enforce the Affidavit of Support in this Court; that her failure to request maintenance did not preclude this action, nor did it serve as any form of mitigation, as Husband would have had to pay either way: as maintenance or under his contractual duty pursuant to the Affidavit of Support. 

Stump v. Stump, 2005 U.S. Dist. LEXIS 26022  (N.D. Ind. October 25, 2005)

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_11.html

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