DeMichele & DeMichele
focuses its family practice in New Jersey, we're always watching other U.S. jurisdictions for legal trends that may affect our clients in the months and years ahead.
Often, New Jersey's diverse character allows our own judiciary to lead the way in evolving areas of the law. A recent Pennslyvania Superior Court decision,
Yvonne A. Love v. James C. Love
, appears to have adopted a decision from the across the Delaware River, right here in the Garden State, that will continue to have a profound effect on new United States immigrants and their sponsoring spouses. That decision arose from
Naik v. Naik, a case from the Superior Court of New Jersey's Appellate Division. The facts of
Naik were, as the Court described them, somewhat “atypical”:
“Wife and Sumeru Naik (husband), age thirty, were married in India on December 8, 2003. The circumstances of the marriage were atypical. The bride and groom had never met. A few days after the marriage ceremony, husband returned to the United States. Wife remained in India. She came to the United States fifteen months later, in March 2005. The only contact the parties had with one another during that fifteen-month period was via telephone. It is uncontested that in order to bring wife to the United States, husband signed an Affidavit of Support pursuant to §213A of the INA.”
Certainly complicated factual situations involving immigration and divorce are becoming less “atypical” in our modern society. The Affidavit of Support executed by Mr. Naik is called a “
,” a federal form explicitly intended “To show that the applying immigrant has enough financial support to live without concern of becoming reliant on U.S. government welfare.” As Mr. Naik soon learned,
his support obligation to Ms. Naik was more than merely symbolic. Problems emerged when the marriage fell apart, Mr. Naik filed for divorce, and Ms. Naik subsequently countersued and sought
pendente lite spousal support. On appeal after significant legal wrangling, the Appellate Court held that “when the obligation created by the Affidavit of Support is against a resident or for the benefit of a New Jersey resident, it may be enforced in the Superior Court of New Jersey. When the action involves, as it does here, a claim between spouses, it should be enforced in the Family Part by the sponsored immigrant.”
Having determined the enforceability of the support agreement, the Appellate Court proceeded to explain the relationship between traditional support (
) and the special obligations which Mr. Naik had agreed to maintain by executing form I-864EZ:
“[…] after setting spousal and child support and equitable distribution, the court should only consider Form I-864EZ support if the sponsored immigrant's sources of support fall below 125 percent of the Federal Poverty Guidelines for the family unit size.3 In that case the sponsor is required to pay the deficiency only. If the sponsored immigrant's sources of support exceed this level, then no Form I-864EZ support is mandated by the INA. Moreover, the duration of standard alimony and Form I-864EZ may differ. The Family Part sets the amount and duration of spousal support pursuant to N.J.S.A. 2A:34-23b and its interpreting case law. The obligation to pay Form I-864EZ support continues until one of the statutory terminating events occurs as discussed above.”
The bottom line?
the I-864EZ form creates an independent support obligation that survives divorce. Until the sponsored immigrant spouse (1) becomes a naturalized citizen, (2) completes forty (40) qualifying quarters of work (totaling approximately 10 years), or (3) becomes capable of sufficiently supporting him or herself, then
the I-864EZ obligation persists. As you can see, immigration-related support issues constitute a very complicated area of the law with profound implications for both new arrivals to our country and their spouses. Experienced counsel can make the difference during this trying time for you and your family. The family law lawyers at
DeMichele & DeMichele
regularly represent New Jersey residents facing complicated divorce and support issues in Camden, Mercer, Gloucester, Burlington, Cumberland, Atlantic, and Salem counties.
For more information about NJ divorce, alimony, or other family law matters, please
or call (856) 546-1350 to schedule a confidential consultation.
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