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I-864 Affidavit of Support and Prenups — Is the Obligation Waivable?

Prenups and I-864 Affidavit of SupportCan a prenuptial or premarital agreement waive the support obligations that a sponsor assumes when he or she signs the Form I-864 Affidavit of Support for a spouse? The answer is ... maybe. Different federal courts, just within the last few years, have ruled differently on this matter.

Toure-Davis v. Davis

In the case of Toure-Davis v. Davis, Civil NO. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (D.Md., March 28, 2014), the United States District Court for the District of Maryland held that:

"[T]he Form I-864 is a contract between the sponsor (in this case, Defendant) and the U.S. Government. 8 C.F.R. § 213a.2(d). This obligation of support, imposed by federal law, is separate and apart from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement."

In that case, the defendant husband (sponsor) signed Form I-864 after signing a prenuptial agreement, and the court said that the prenup was invalid because it waived an obligation of support that did not exist at the time it was signed. The court also said that by signing Form I-864, which was a contract between him and the federal government, the defendant husband made the plaintiff wife a third-party beneficiary to that contract, giving her the right to sue under it in federal court.

Blain v. Herrell

This outcome is different from that in Blain v. Herrell, No. 10-72 ACK-KSC, 2010 U.S. Dist. LEXIS 76257, 2010
WL 2900432 (D. Haw. July 21, 2010). In that case, the plaintiff husband (Blain) and defendant wife (Herrell) signed a prenuptial agreement agreeing not to seek any support from each other in the event of divorce, and subsequently, were married in August of 2007. In July of 2008, defendant Herrell, who is a U.S. citizen, signed a Form I-864 allowing plaintiff Blain to become a lawful permanent resident (LPR). The parties subsequently divorced in 2009.

The prenuptial agreement in Blain was signed prior to the I-864 (as it was in Toure-Davis, which was decided later and which considered the Blain decision). However, the court in Blain held that the prenup did waive the right of support in that case. The court did observe that it was not addressing the right of a public agency to enforce Form I-864 against Herrell, however, in the event such an agency provided covered means-tested public benefits to Blain.

Erler v. Erler

Yet another case, Erler v. Erler, CV-12-02793-CRB, 2013 WL 6139721 (N.D. Cal. Nov. 21, 2013), from the Northern District of California, states that a premarital agreement cannot waive the I-864 duty of support. In that case, the parties execued a premarital agreement and were married two weeks before the defendant husband signed the I-864 Affidavit of Support.

The Erler court held that the premarital agreement did not waive the duty of support created by Form I-864. The court reasoned that Form I-864 is a contract between the sponsor and the U.S. government, and the premarital agreement is a contract between the sponsor and the immigrant spouse. If the premarital agreement were allowed to void the I-864, the effect would be that the sponsor's making a contract with a private party would be allowed to void a prior contract with the government.

In addition, in Erler, the defendant husband Defendant executed the premarital agreement before signing Form I-864. In so doing, he assumed the obligation of support under Form I-864 after he purported to disclaim any such obligations in the prenup. As in the subsequent case of Toure-Davis, in which the plaintiff couldn't waive a right she had not yet acquired, in Erler, the husband could not use the prenup to void an obligation he had not yet assumed.

If you are thinking about sponsoring a foreign-born spouse, fiance, and/or their children, you should first consult with an attorney experienced in both Maryland family law and federal immigration law. If you have questions or concerns about how signing an I-864 Affidavit of Support or a prenuptial agreement affects your rights or obligations, contact Howard County, MD immigration lawyer Van T. Doan.