Responsibility to Pay Immigrant Ex-Spouse’s Spousal Support

Ashlyne and Vikash Kumar were married in Fiji in September of 2012 in an arranged marriage.  Vikash is a United States citizen and Ashlyne is a Fijian citizen.  Immediately after the marriage, Vikash filed an immigrant visa for Ashlyne and also filed federal form 1-864 ((affidavit of support).  This form obligated Vikash to support Ashlyne for 10 years in the United States, and that Ashlyne could sue Vikash if he refused to support her.

Vikash returned to the United States.  Ashlyne arrived in 2013 after receiving her visa and began living with Vikash and his family in Daly City California.

According to Ashlyne, Vikash "began abusing her almost immediately." she said, He never spoke to her unless it was to tell her to go back to Fiji.  She also claimed Vikash and his family "tricked” her into going to Fiji with them, and once there, Vikash abandoned her. Further, someone tore the legal permanent resident stamp out of her passport, forcing her to obtain temporary travel documents from the U.S. Embassy in Fiji. She returned to the U.S. in December of 2013.

In January of 2014, Vikash filed for an annulment of marriage or in the alternative a dissolution of marriage.  Ashlyne responded to deny the annulment and allow the divorce to proceed.  She also requested spousal support because she did not have a job, nor was able to get federal financial help.

At the spousal support hearing, Vikash (through his attorney) told that trial court that the parties had agreed that Vikash would pay Ashlyne $650 per month for temporary support, but she would not agree to a "seek work" order or a Gavron warning. (A Gavron warning is a notice issued by the court to a spouse/ex-spouse receiving support that he or she is expected to become self-supporting.)  Ashlyne argued (through her attorney) that she was on general assistance. She was living in a shelter, and could not seek work because Vikash had stolen her current residency card. Vikash argued that it was her “...choice to come here and stay here", thus, she had a duty to become self-supporting. Ashlyne then argued that Vikash had signed a federal form I-864 affidavit obligating him to support her for 10 years or 40 quarters. Vikash, however, argued that “…the affidavit was irrelevant in this court”, because the 1-864 affidavit was federal and this was a state court with state laws.

The trial court awarded Ashlyne $650 a month temporary spousal support and advised her to get a job or she could lose her spousal support.  At a later hearing the trial court, at Vikash’s request terminated her spousal support because she was working for only $9.00 per hour at Blimpies, and earning her GED.  The court determined her salary was under her potential earning capabilities, therefore the termination of support.  Ashlyne appealed.

The Appellate Court reversed the trial court’s decision, stating the I-864 affidavit is "a legally enforceable contract between the sponsor and the sponsored immigrant." The sponsor is only relieved of his/her support obligation if the sponsor or the immigrant dies, the immigrant becomes as U.S. citizen, the immigrant leaves the U.S. permanently, or the immigrant "is credited with 40 qualifying quarters of work." The court further noted that divorce is not a condition that relieves the sponsor from his or her support obligation.

“…Moreover, per 8 USC §1183a, sub (a)(1)(B) & (C), an action to enforce the I-864 affidavit may be brought in either federal or state court.” Lastly, the Appellate Court determined that the Federal Pre-emption Doctrine did not bar her from seeking enforcement in state court, pointing out that Ashlyne's right to support under the I-864 affidavit was separate from whatever right she had to spousal support under state law.

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