INS Immigration Affidavit (I-864) Creates Enforceable Spousal Support Obligation

In a ground-breaking decision, the Pennsylvania Superior Court recently vacated a trial court order refusing to enforce contractual support obligations under a standard affidavit signed by a U.S. citizen to sponsor his wife’s immigration. In Love v. Love, 2011 PA Super 268 (12/14/2011), the Court held that a Philadelphia trial court abused its discretion by refusing to enforce a contractual support obligation under an INS Form I-864 affidavit, where the citizen spouse agreed to provide support to his wife in an amount at least equal to 125% of the federal poverty guidelines until her citizenship, death, deportation, adjustment of immigrant status, or attainment of forty quarters of coverage under the Social Security Act. The affidavit form explicitly stated that it was enforceable by Wife in any appropriate court.

Relying upon Nicholson v. Combs, a 1997 decision of the Pennsylvania Supreme Court, the husband argued that his contractual support obligation was unenforcable in divorce or support proceedings. The trial court held that the affidavit might be enforceable in a private civil suit, but not in divorce court. The Superior Court distinguished Nicholson, which involved a child support provision of a marital settlement agreement. The Court held that Nicholson did not preclude the immigrant wife in this case from enforcing the agreement in support proceedings, where they would constitute grounds for deviation under Rule 1910.16-5. Judge Bowes also pointed to § 3105(a), which authorizes the divorce court to enforce agreements in the same manner as court orders.

Giving instructions to the trial court on remand, the Superior Court cited Naik v. Naik, a 2008 New Jersey decision where the citizen spouse may be required to make up the difference, if any, between the guideline amount of spousal support and 125% of the federal poverty guidelines. However, the Superior Court held that the trial court should not impose an earning capacity upon the immigrant wife. On the other hand, the Superior Court recognized the wife’s common law duty to mitigate. The Court held that it would be the husband’s duty to raise and prove the affirmative defense of failure to mitigate.

In a dissent, Judge Freedberg wrote that she would have affirmed the trial court’s order, leaving the immigrant wife to assert her claims in a separate civil suit.