Wednesday, August 6, 2014

Intersections Between Family Law and Immigration Law

A new decision out of the Washington State Court of Appeals, Division II was issued yesterday. The question presented to the court was whether the court is obligated to award maintenance (spousal support) in an amount and duration equal to the independent support obligation under federal immigration law.

In In re Marriage of Kahn, the wife had entered the United States on a K1 (fiancee) visa. After their marriage, the husband sponsored the wife's application for permanent residency. Part of the application process required the husband, as the sponsor, to sign an affidavit of support (Form I-864) under section 213A of the Immigration and Nationality Act. The affidavit of support binds the husband to provide the financial support necessary to maintain the wife at an income level at least 125 percent above the federal poverty line and the obligation continues indefinitely with few exceptions for termination. The parties separated after nearly two years of marriage.

Division II held that a maintenance order need not include enforcement of a person's I-864 obligation for three reasons. First, the court considered that there is no conflict between federal law regarding I-864 obligations and Washington dissolution law because they are independent of each other. Second, RCW 26.09.090 governs the award of maintenance in Washington and a trial court cannot rely solely on a non-statutory factor in making a maintenance determination without also fairly considering the statutory factors. Finally, the beneficiary of an I-864 obligation, the wife in this case, will not be left without remedy if that obligation is not included in a maintenance award.

The link to the court's opinion can be found here:

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Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more. 

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