Immigrant Spouses May Use Their Immigration Affidavit of Support to Obtain Maintenance From Their Spouse

immigrationThere has been a growing trend of divorces involving immigrant women who were brought to the U.S. by an American citizen for the purposes of marriage and promises of living the American dream.  Once in the U.S., and possibly a child or two later, the dream unravels and they are faced with the prospect of divorce in a foreign country without knowing the language and with no little to no earning capacity.

In Illinois, new maintenance guidelines allow for maintenance, formerly known as alimony, to be awarded based on the duration of the marriage and the income of both parties.  Judges can only deviate from these guidelines if there is a strong justification for doing so.   The problem for immigrant women is that they may not have a sufficiently lengthy marriage for a proper maintenance award.  For example, a woman married for two years could receive little or no maintenance if she is young, healthy and well-educated.  For an immigrant woman with no family members in the country, who may not be familiar with the language and has no employment prospects, the new maintenance guidelines could prove devastating, and may force women in abusive relationships to stay in the marriage.

However, more and more Courts have been upholding immigration affidavits of support that are filed by the husbands in the U.S., wherein they swear to financially provide for their immigrant spouse for an amount no less than 125% of the Federal Poverty Guidelines.  The affiant swears to financially support his immigrant spouse until a triggering termination event, such as the sponsored immigrant becomes a naturalized citizen, completes 40 qualifying quarters (approximately 10 years) of work, dies, or becomes capable of providing for himself or herself.  Divorce, however, is not a terminating event.

In Naik v. Naik, 399 N.J. Super. 390 (App. Div. 2008), the trial court refused to enforce the affidavit of support and found that the wife did not qualify for maintenance under statutory grounds.  Surprisingly, the immigrant spouse in Naik argued the appeal herself, and won.  The Appellate Court reversed the trial court’s decision and found that the husband was bound by the affidavit of support he filed when petitioning to sponsor his souse’s permanent residence, or green card, application.  The Court stated that the court should set spousal and child support and equitable distribution of property, if applicable, and if the sponsored immigrant’s sources of support fall below 125 percent of the Federal Poverty Guidelines, the sponsor is required to pay the deficiency only.

There is a 2011 Rule 23 opinion from the Illinois Appellate Court, Second District, In re Marriage of Amin, 2011 IL. App (2d) 100431-U, in which the immigrant spouse was awarded 18 months of maintenance, and the immigrant spouse argued that the affidavit of support was not considered properly in awarding her said award.  The Court upheld the trial court’s decision stating only that the trial court did not abuse its discretion as the maintenance amount would have been lower if the trial court used the affidavit of support.

It will be interesting to see the dynamic between the new Illinois maintenance guidelines and the affidavit of support.  While trial courts previously had discretion to extend the amount of maintenance based on a spouse’s education and financial circumstances, the new maintenance guidelines leave little to no room to argue for a longer maintenance award.  As a result, I foresee there being more litigation utilizing affidavits of support in Illinois.







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