THE EXPANDED OBLIGATION TO SUPPORT (FOREIGN SPOUSES AND THEIR CHILDREN)

Everyone knows how easy it is for people to meet and marry others who live in foreign countries these days. With the widespread use of the Internet and the enormous amount of dating services available online, the “mail order bride” industry has grown exponentially. As a result, there are more Americans than ever, who are bringing new spouses into our country and who are choosing to act as “sponsors” for the new spouses and their spouses’ children.

A series of recent decisions suggest that being a sponsor for a new spouse and the spouse’s children is a risky proposition. Consequently, the obligations that are incurred by a sponsor should be fully understood and carefully considered before you or someone you know decides to bring a new spouse to this country.

THE AFFIDAVIT OF SUPPORT

When a U.S. citizen brings a spouse from another country into our country, he or she becomes a “sponsor,” and has to agree to sign an affidavit of support for the spouse and his or her children. This obligation of support was created to ensure that the spouse and his or her children do not become public wards if the marriage terminates or the parties separate.

As with most forms created by the federal government, the affidavit of support is a convoluted document that is difficult to understand. The fine print of this form requires that the sponsor pledge his or her support and that the support pledged can only be terminated for one of the following five reasons: 1) the sponsor’s death; 2) the sponsored immigrant’s death; 3) the sponsored immigrant becoming a U.S. citizen; 4) the sponsored immigrant permanently departing the U.S.; or 5) the immigrant being credited with a total of 40 qualifying quarters of work (i.e., ten years).

In the event that the marriage does not work out and/or the parties separate after a short period of time, the pledged obligation of support can be quite burdensome.

Recent appellate court decisions throughout the country have held that the sponsor’s obligation to support a spouse and his or her children can be enforced in both federal and state courts. In addition, the state court must order a sponsor to continue to pay support after the marriage has been dissolved, and where support would or could not be ordered under the state’s law.

Considering California’s laws pertaining to spousal and child support, this expanded duty of support is frightening.

DURATION OF SPOUSAL SUPPORT EXPANDED

Imagine bringing your new spouse to this country hoping for a long lasting marriage, making all the arrangements for your new home and after only six months, your spouse suddenly moves out. If this happened to you, it would be wise to put aside your feelings of hurt and rejection, because you will have more serious problems - your expanded duty of support!

In California, where there is a marriage of “short duration” (i.e., less than ten years), the rule of thumb used by the courts is to order spousal support for one-half of the duration of the marriage. Thus, in the case of a marriage lasting only six months, the court will usually terminate spousal support after three months.

However, in the case of a sponsor who pledges the support of his or her new spouse, this obligation can last up to ten years. Ouch!

DUTY TO SUPPORT CHILDREN

What about your spouse’s children?

In most cases, there is no duty to support your spouse’s children from a prior relationship. Under California law, a person has the legal obligation to support a child only under specific circumstances, such as when a party is the biological parent of the child, a party has adopted the child, when the child was conceived during the marriage and the parties were living together, or where a party has held him or herself out in the community as the child’s parent.

However, in the case of a sponsor, the duty to support exists, even if the party had not formed a relationship with the child. Again, based on the sponsor’s pledge to support the spouse and his or her children, the obligation can last up to ten years!

WITHDRAWAL OF THE AFFIDAVIT WILL NOT HELP!

In a couple of appellate court decisions addressing this issue, the sponsors argued that the duty to support terminated when the affidavit of support was withdrawn. To support their argument, these sponsors cited the written position of the U.S. Citizenship and Immigration Services, which states that the sponsor can retract the Affidavit of Support anytime until the adjustment of status process is complete.

Unfortunately for these sponsors, the courts of appeals have disagreed. All relevant court decisions have held that the affidavit of support is an enforceable contract and that it is binding at the moment it is signed.

THE BOTTOM LINE

Before signing an Affidavit of Support, a sponsor would be wise to remember the old proverb, “marry in haste, repent in leisure.” Indeed, those who bring new spouses into this country, and subsequently discover that they have made a mistake, may have to live with the unpleasant consequences for a long time.