For U.S. petitioners seeking clarity on what happens to their financial support obligations after divorcing their immigrant spouse, the U.S. Court of Appeals for the Ninth Circuit provided some recent clarity—containing both good and bad news, depending on the size of the household in which your ex is currently living. (See Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016).
The bad (but hardly surprising) news is that the obligation laid out in the Affidavit of Support (Form (I-864) not only survives the divorce, but overrides any premarital or prenuptial agreement made between the spouses. (For background on this, see What Sponsors Should Know Before Signing Form I-864 Affidavit of Support.)
In the Erler case, Mr. Yashar Erler, the U.S. citizen husband (a well-to-do real estate agent), had signed a prenuptial agreement in which his wife claimed no right to alimony. But the court followed the standard reasoning that the I-864 support obligations are a contract with the U.S. government, meant to ensure that the immigrant will not require public assistance, and is thus a separate obligation from alimony.
The possibly good news is that, when calculating the extent of the petitioner’s support obligation, the ex-spouse is the only person to whom the obligation extends. So, for instance, if the ex-spouse were to move in with her ten children from a previous marriage, who weren’t named as beneficiaries on the I-864, the divorced petitioner’s support doesn’t extend to the whole clan.
That’s not the result Mr. Erler was hoping for, however. His former wife had moved in with her adult son, who was supporting her at a level above the poverty line. The court ruled that his support was irrelevant; Mr. Erler needs to continue supporting his ex-wife based solely on her income level, which is zero.