Let's get married, and if you come to America, I will support you.

U.S. citizens sometimes meet exotic foreigners (or perhaps not so exotic), and, swept away by the prospect of a lifetime of love and happiness, marry in order to start the process of their new love's legal immigration to the United States.  I have personally witnessed this phenomenon.  One friend from law school fell for her Egyptian tour guide during a cruise of the Nile, married him and brought him back to America with her.  They now have two lovely daughters and reside in Chicago.  Another friend, a doctor from Philadelphia, swooned over her tour guide in Costa Rica and after several subsequent trips, married him and brought him to Philadelphia.  Clearly, tour guides provide a certain allure for Americans!  

In my practice, I have encountered much less romantic tales.  I have had cases where people married foreigners that they met over the internet.  Once the person settled in America, the romance quickly faded, and divorce papers were prepared before the ink on the marriage certificate was dry.  However, in addition to dealing with divorce laws, these marriages face the scrutiny of our immigration laws.

Our federal immigration laws dictate that when a U.S. citizen marries a non-citizen in order to facilitate the non-citizen's road to legal residence in the United States, then the U.S. citizen must execute an Affidavit to provide support to the non-citizen.  The U.S. citizen must provide support equal to at least 125% of the Federal Poverty guidelines.  

Each state’s laws dictate that spouses also owe a duty of support to each other.  Accordingly, upon separation, because "I do" also means "I will support you," the spouse who earns less (or nothing at all) has a claim for support against the higher-earning spouse.  Those support claims are governed by state law.  However, citizens, who signed an Affidavit to support their spouse pursuant to immigration law, are also subject to the state’s support requirements.  What happens if the support calculations under state law are different than the support calculations under immigration law?  Does the spouse get both?  Or the higher amount?  Do you go to federal or state court to enforce?  

The Superior Court of Pennsylvania (our appellate court) recently opined on the issue in a case appealed from the Philadelphia Court of Common Pleas.  In this case, James C. Love, a U.S. citizen, married Yvonne, who took his last name and became Yvonne A. Love.  The names are not relevant to the story, just a bit ironic, as any love ever present in this case appears to have given way to years of litigation.  They married on October 29, 2005 and separated in May 2009.  They have been fighting in court ever since.

The parties had a daughter during the marriage, and upon separation, Wife filed a claim for spousal and child support.  In calculating the support, the trial court imputed an earning capacity to Wife.  (Courts use earning capacities in cases where they believe an individual is under-employed or unemployed voluntarily.  This is a remedy that attempts to achieve fairness so that one spouse does not bear the entire financial burden, while the other spouse refuses to work to their full capacity).  

In this case, the support amount calculated by the Philadelphia court was less than the amount Wife calculated she would have received pursuant to the Affidavit of Support signed by her Husband under immigration law.  Simply put, the state support order, as entered, was less than 125% of the Federal Poverty Guidelines.  The trial court, however, opined that Wife had a duty to work and contribute to her own support.  The trial court further reasoned that if she worked a minimum wage job for 30 hours per week, combined with Husband's support, she would actually have much more than 125% of the Federal Poverty Guidelines available to her.

On appeal, the Pennsylvania Superior Court ruled that the trial court should have deviated from the guideline support amount and calculated a support award that constituted at least 125% of the Federal Poverty Guidelines.  Accordingly, the trial court should have enforced the federal immigration law.

One Superior Court justice dissented, opining that the trial court was correct and if Wife wanted to enforce the Affidavit then she needed to institute a separate action under federal law.

 This case provides valuable guidance for situations where immigration and family law intersect.  If a spouse signed an Affidavit under immigration law, agreeing to provide support at 125% of the Federal Poverty Guidelines, then he or she should be prepared to pay at least that amount in support, even if calculations under Pennsylvania support laws would allow a lower amount.  

To read the entire opinion in Yvonne A. Love v. James C. Love, click here.