Q: If a legal permanent resident of the United States who is married to a US citizen moves out of the country…
and divorces their spouse, stays out of the country for several years, then meets another US citizen and moves back to the United States, can they still sue their previous spouse for maintenance based on the affidavit of support?
A:
If a legal permanent resident (LPR) of the United States, who was married to a U.S. citizen, moves out of the country, divorces, and then returns to the U.S. with another U.S. citizen spouse, the issue of maintenance based on the affidavit of support from the first marriage can be complex.
The Affidavit of Support (Form I-864) is a contract between a sponsor (in this case, the first U.S. citizen spouse) and the U.S. government, wherein the sponsor agrees to support the LPR at an amount not less than 125% of the Federal Poverty Guidelines. This obligation generally continues until the LPR becomes a U.S. citizen, has worked 40 quarters credited for Social Security, leaves the U.S. permanently, or dies.
Given these conditions, if the LPR has not achieved any of these terminating events, they may still have the right to seek maintenance from their first spouse based on the affidavit of support, even after divorce and subsequent remarriage. The courts have recognized the enforceability of the affidavit of support as a legally binding contract, and some LPRs have successfully sued their sponsors for support.
However, the specifics of the case, including the duration of time spent outside the U.S. and the nature of the new relationship, could potentially impact the situation. The LPR’s return to the U.S. with a new U.S. citizen spouse doesn’t automatically nullify the original affidavit of support, but the circumstances might be considered in any legal action.
If you are in this situation, it would be prudent to seek legal advice from an attorney who is knowledgeable in both family law and immigration law. They can provide more specific guidance based on the details of your case.
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