Website Q & A - April 9, 2007

I Am Suing My Wife for Divorce Because of Adultery, but She Says That I Must Continue to Support Her According to the I-864 Affidavit of Support. Is That True?

Dear Mr. Lee,

I am an American citizen and became interested in a girl in China. We wrote many letters, exchanged photographs, and did a lot of e-mails during 2005-2006. I visited her in March 2006 and we became engaged. I then sponsored her K-1 fiancee visa. She came to the U.S. in late October, and we got married right away in November and filed papers for her green card. However, she left me for another man in an early December. I immediately sent notice to the U.S.C.I.S. office to cancel her case including my I-864 affidavit of support and filed for divorce. Now her lawyer is claiming that I have an obligation to continue supporting her because she was a third-party beneficiary to my contract with the U.S. government on my affidavit of support. Is this enforceable since she cheated on me?

Dear reader:

As I am not a contracts lawyer, I cannot tell you of defenses against third-party beneficiaries in contract cases. The binding affidavit of support (form I-864) was part of the Welfare Reform Act of 1996 and placed a support obligation on the signer until the time that the beneficiary becomes a U.S. citizen, dies, permanently leaves the U.S., works for 40 quarters (10 years) in the U.S., or applies for and obtains a new grant of adjustment of status in removal proceedings based on a new affidavit of support. Divorce does not put an end to the obligation. In your case, however, you would not appear to be liable because U.S.C.I.S. clarified in regulations in June 2006 that the support obligation does not arise until the beneficiary adjusts status to permanent residence. Prior to that time, the I-864 can be withdrawn. As you have already done that and notified U.S.C.I.S. that you are cancelling her case, you would not appear to have any obligation under the I-864 as per the regulation. Of course, I do note that matters of divorce depend upon state law and a divorce court may have a different view even though it appears unlikely.


Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.