Filing for Bankruptcy: Will I Still Be Responsible Pay for Support Under the I-864?

Making an argument that an adult child of the immigrant should not be able to claim ongoing financial support.

Question

I sponsored my ex-wife and her teenage son for the green card years ago. Things soured between me and her because of money problems, so we got divorced. I found out that she applied for naturalization recently, but her son, who is now 19, didn't. He doesn't work and he doesn't go to school. Instead, he wants me to pay for his support under the I-864. I can’t believe it! He is an adult! And even when I settled with his mother for the alimony it was clear that I did not owe him any child support. Now I am filing for bankruptcy under Chapter 7, and I just want to make sure: Am I still going to be responsible for him under the I-864?

Answer

The answer to your question depends on the interplay between different areas of U.S. law, some of which are yet to be thoroughly interpreted by judicial decisions. The short answer is, though you may still be responsible under the I-864, you might be able to offer a legitimate argument for  discharging  your obligation in bankruptcy.

First of all, you should know that your obligation to support your stepson under the I-864 Affidavit of Support (assuming his annual income fell below 125% of the amount listed under the poverty guidelines)  continued  after you divorced his mother. You signed a separate I-864 for each of them, so your obligation to support him was created irrespective of your responsibility to support her. Moreover, your obligation to support him did not depend on his age, and, even though this burden would decrease or cease upon his obtaining sufficient employment or U.S. citizenship, he is under no clear legal obligation to take any such step.

Second of all, bankruptcy does not necessarily end your I-864 obligations. Most debts and contractual obligations are dischargeable in bankruptcy, but so-called “domestic support obligations” are one exception. Such obligations are defined as alimony, maintenance, or support owed to or recoverable by one’s spouse, former spouse, or child. Under U.S. court decisions — for now — these also include I-864 support obligations.

Nonetheless, arguably, not every I-864 obligation needs be defined as a domestic support obligation. After all, some I-864 beneficiaries (parents, brothers, or sisters) are related to their sponsor (or joint sponsor) neither as spouses, nor as ex-spouses, nor as children. Therefore, the sponsors in such cases could argue that their obligation should be dischargeable.

Similarly, perhaps you could argue that your obligation to your stepson is not a domestic support obligation — notably because he is not a child and, even if he were, he is not  your  child (as reflected by the fact that  he could not qualify for child support).

To explore the viability of this argument in more detail, you should consult with both an immigration attorney and a bankruptcy attorney.

 

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