CLE presented on October 23, 2014 by Ramina Dehkhoda-Steele, Wong Fleming
Summary prepared by Sophie C. Jin, WSBA IPS Huneke Fellow, 2014-15
Although family law has traditionally fallen within the purview of state law, it can implicate international law, particularly federal immigration law; especially in matters involving couples with at least one immigrant spouse. A recent decision by the Washington State Court of Appeals (Division II), In re Marriage of Khan and Khan, Case No. 44814-9-II, 2014 WL 3859305 (Wa. Ct. App. Aug. 5, 2014), illustrates some of the complex legal issues that can arise in this intersection of family law and immigration law. Specifically, the court in Khan discussed whether, in the event of marital dissolution, an affidavit of support signed under federal immigration law is an enforceable contract distinct from spousal maintenance against the U.S. citizen petitioner spouse.
In applying for permanent residency, persons who entered the United States on a K-1 (fiancée) visa must submit an affidavit of support (USCIS Form I-864) signed by their U.S. citizen spouse. In signing the affidavit, the petitioning spouse agrees to provide the financial support necessary to maintain the beneficiary at an income level that is at least 125 percent of the federal poverty line. The I-864 creates a binding contract between the sponsor and the federal government, while the immigrant spouse is effectively a third-party beneficiary to the contract. Perhaps most importantly, as an intended third-party beneficiary, the immigrant spouse can enforce this support obligation against the sponsor. See 8 U.S.C. § 1183a(a)(1)(B). Specifically, the Immigration and Nationality Act states that the affidavit of support is “legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State…or by any other entity that provides any means-tested public benefit.” Id. At least one federal court of appeals has found that this support obligation continues even after dissolution of the marriage. See Liu v. Mund, 686 F.3d 418, 423 (7th Cir. 2012).
In the context of marital dissolution and spousal maintenance, the I-864 affiant’s promise of financial support raises two questions: (1) whether the obligation can be considered a form of spousal maintenance and therefore enforced through a spousal maintenance award; and (2) whether the sponsored spouse can raise the I-864 affidavit issue in a separate and distinct proceeding under a breach of contract claim to enforce the support obligation.
In Khan, the former wife had entered the U.S. on a K-1 visa and the husband had signed an I-864 affidavit of support in order to sponsor her application for permanent residency. Two years later, the couple separated and petitioned for dissolution of marriage. The former husband made maintenance payments for 12 months, after which the former wife had sought continued maintenance based on her former husband’s I-864 support obligation. The Washington Court of Appeals held that the I-864 affidavit creates a contractual obligation that is distinct from spousal maintenance and that a trial court was not required to consider it in determining whether to grant maintenance under state law. Perhaps most importantly, the Khan Court also ruled that the sponsored spouse was not precluded from enforcing the I-864 obligation in a separate action, leaving open the possibility for the sponsored spouse to seek additional financial support through a money judgment for breaching the I-864.
In the wake of Khan, Washington courts will most likely not consider an I-864 obligation as part of the traditional factors in determining spousal maintenance pursuant to RCW 26.09.090. While the sponsored spouse will have the right to separately enforce their former spouse’s I-864 obligations through a breach of contract action, bringing a separate action will likely involve certain procedural challenges. For example, the sponsoring spouse might need to join the federal government as a necessary party to the contract action given that the contract was in fact between the sponsoring spouse and the U.S. government. However, the federal government is almost certain to remove any case filed from state court to federal court. As such, it may be advisable to file such actions in federal court at the outset so as to reduce administrative fees and delay.
Finally, it is worth noting that courts in other jurisdictions have reached varying conclusions that differ from the Washington Court of Appeals’ approach in Khan. For example, the Pennsylvania Superior Court reversed a trial court’s order of spousal support, finding the trial court erred by not considering the sponsoring spouse’s I-864 obligation when it fashioned the spousal support order. See Love v. Love, 33 A.3d 1268 (2011). Unlike Khan, the court in Love held that under relevant Pennsylvania laws, the court should have considered the I-864 as a possible deviation from the standard spousal support calculation as part of the dissolution proceeding. Meanwhile, in Liu v. Mund, 686 F.3d 418, 420 (7th Cir. 2012), the Seventh Circuit Court of Appeals considered whether a sponsored spouse seeking to enforce an I-864 as a separate contract claim had a duty to mitigate damages. While the district court had held Liu was not entitled to support under the I-864 since she had not been actively seeking employment, the Seventh Circuit reversed, holding the sponsored spouse had no duty imposed to mitigate her damages. In reaching this decision, the court focused both on the I-864 affidavit’s purpose to prevent the noncitizen from becoming a public charge, and importance of incentivizing prospective sponsors to be more cautious when agreeing to sign the I-864. Finally, other courts have held that a separate action to enforce an I-864 obligation is precluded if the issue is raised in a prior dissolution proceeding (though it is not typical to raise it, at least in Washington State).
This is still an emerging and developing area of law with considerable variation between states due to the unique characteristics of family law in different states. Given these variations, attorneys should consider several factors before filing an action: (1) whether to enforce the I-864 concurrently or prior to dissolution proceedings in order to avoid the possibility of preclusion; (2) whether to file in state or federal court; or even (3) whether the sponsored spouse should actively seek gainful employment while their legal action is pending.
 In Washington State, what is commonly known as “spousal support” or “alimony” is called spousal maintenance.
The preceding summary discusses certain key points discussed during the CLE presentation, all of which were outlined in greater detail in the accompanying written materials. This summary is a publication of the WSBA International Practice Section, and is posted with the approval of the speaker and the WSBA International Practice Section executive committee. It is designed to inform members of the WSBA International Practice Section of recent legal developments, and may not be used to claim CLE credit. This summary is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. If you have specific questions about this topic, please feel free to contact Ms. Dehkhoda-Steele by email at firstname.lastname@example.org or by phone at 425-869-4040.
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