Immigrant divorcing U.S. citizen husband: Does prenup prevent him from supporting me per I-864?

A prenup is not necessarily the last word on whether a divorced immigrant spouse can request support under the Form I-864 affidavit.

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Question

I got my green card by marrying a U.S. citizen six years ago. My husband has been unfaithful. So we are getting a divorce. Now I’m scared because I was so dependent on him for everything and I don’t work because he said he wanted me to be a homemaker. And I think I can’t get him to pay me alimony because of our prenuptial agreement. But what about the support he promised in the I-864 form? Can I still get him to pay for it?

Answer

Whether your prenuptial agreement might limit your right to receive support from your husband under the Form I-864 Affidavit of Support is unclear — both because of the lack of detail in your question (about the wording of the prenuptial agreement) and because this area of the law has not been settled yet.

You could probably argue to a court that the Form I-864 has less to do with your status as a spouse and more to do with your status as an immigrant. On this basis, you could conclude that you should still be able to obtain support under the Form I-864 even if you have agreed to give up on spousal support.

For now, however, the legal weight of this argument is likely to depend on the state (or “jurisdiction”) where you live. You should consult a divorce attorney and/or an immigration attorney to find out how this issue might apply in your case.

Assuming, nonetheless, that your prenuptial agreement does not limit your right to receive support from your husband, you could obtain such support (up to 125% of the amount listed in the U.S. government’s Poverty Guidelines every year) by suing him in federal or state court. For the year 2014, this means you could recover an annual amount of up to $14,588 in cash or other benefits. (Your husband might be able to meet at least part of his support requirement by providing you with “in kind” benefits — such as food and housing assistance.)

If you choose to sue, you could also recover your attorney’s fees, if reasonable. This possibility could give your husband an incentive to accept you support request without having to go to court.

Note that the amount of support you receive might be reduced by certain other forms of income you receive — including wages from any employment, and student grants if you choose to attend school. However, you are not currently required to seek out such other sources of income.

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