It is well settled under New York law that one spouse may be required to support another spouse, during and after a divorce, to meet the reasonable needs of the recipient spouse. In divorces cases in which one spouse is an immigrant, New York courts often consider the U.S citizen or permanent resident spouse’s financial responsibility imposed by both New York state law and federal immigration law when deciding maintenance and equitable distribution of marital property.
I. Maintenance may be awarded in consideration of the immigrant spouse’s immigration status pursuant to New York law.
In awarding maintenance to a spouse, New York courts must consider the reasonable needs of the recipient spouse and the pre-separation or pre-divorce standard of living in the context of the factors enumerated in the domestic relations laws of the State of New York, which include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance.
One of the purposes of an award of maintenance is to encourage economic independence, which is the most relevant to a divorce case involving an immigrant. When considering an award of maintenance, New York courts consider the difficulty that an immigrant spouse will have in earning economic independence due to his or her immigration status. Recently, a husband was ordered to support his wife for her life because, as a means of exerting power over his wife, the husband had intentionally neglected to take the steps necessary to assist her in obtaining legal immigration status in this country and caused the wife to be placed in a state where her immigration status was vulnerable. The court also noted that the wife’s immigration status prevented her from being a recipient of public assistance and from obtaining employment. Therefore, lifetime maintenance was awarded to the wife.
The amount and duration of maintenance is a matter committed to the discretion of the trial court and every case must be determined on its unique facts. It is therefore important to present to the court the unique facts in each matrimonial action involving an immigrant spouse. For example, many immigrants in New York are gainfully employed. However, a divorce may cause unfortunate disruption in an immigrant’s career and cause significant financial loss if he or she loses lawful immigration status and has to stop working if nonimmigrant worker status cannot be timely regained. In these cases, it would only be fair if the court required one spouse to take financial responsibilty until the immigrant spouse can resume his/her employment that is comparable to his/her education, experience, and professional qualifications.
II. Affidavit of Support may be enforced by an immigrant spouse in New York state courts pursuant to federal law.
Almost every person married to an immigrant signed an Affidavit of Support (Form I-864) to sponsor the spouse’s emigration to the United States. The Affidavit of Support is a legally enforceable contract under which the sponsor agrees to provide support to maintain the sponsored immigrant at an annual income that is not less than 125 percent of the federal poverty line, until the occurrence of a qualifying terminating event.
A divorce does not terminate a sponsor’s financial obligation imposed by the Affidavit of Support executed in accordance with federal immigration law. During a divorce, a person who has signed an Affidavit of Support under federal immigration law may withdraw the Affidavit. In an adjustment of status case, a withdrawal of the Affidavit of Support is not effective unless it is in writing and U.S. Citizenship and Immigration Services (USCIS) actually receives the withdrawal before the final decision on the adjustment application. If an Affidavit of Support has been effectively withdrawn, the sponsoring spouse will be free from any financial reponsibility to the immigrant spouse imposed by federal law.
In the case where a sponsoring spouse is unable to withdraw his/her Affidavit of Support, the sponsoring spouse will have to continue his/her support responsibility even after the divorce. Federal law expressly permits a sponsored immigrant spouse to bring an action for enforcement of an Affidavit of Support against the sponsoring spouse in any federal or state court. A recent state court ruling held that the Supreme Court of the State of New York is a proper court for an immigrant spouse to seek support from the sponsoring spouse during a divorce action. Clearly, New York state courts will enforce a sponsoring spouse’s financial obligation towards an immigrant spouse under an Affidavit of Support in the context of a divorce action.
New York does not have a mathematical formula for determining the amount of maintenance or spousal support in matrimonial actions. As the courts have stated repeatedly, the determination of the amount and duration of spousal support is subject to a judge’s discretion and depends on the unique facts of each case. The information above is only a summary of the recent development of maintenance law in New York, as more and more immigrants are becoming involved in matrimonial litigation here. Each case involving an immigrant is treated consistent with its unique facts.
