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Immigration Green Card and Spousal Maintenance in Minnesota

By Cynthia Miller and Vincent Martin - Minnesota Divorce and Immigration Lawyers

What is alimony?

In Minnesota, alimony is called "spousal maintenance." Spousal maintenance is an award of payments in a divorce from the future income or earnings of one spouse for the support of the other. There are a number of factors the court must look at before making a determination regarding the amount and duration of maintenance. Unlike child support, there are no percentage guidelines or specific calculation tables to determine how much or when maintenance should be paid. Therefore, the courts have very broad discretion when deciding the issue of spousal maintenance. Because of that discretion, maintenance can be a very contentious issue in a divorce.

What if my husband or wife is a foreigner or immigrant? What if I sponsored my wife or husband for the green card?

It can become even more contentious when one spouse is an immigrant and the United States citizen spouse (or sponsor) has signed an Affidavit of Support (or Form I-864) which is required by law so the immigrant spouse can lawfully reside in the Untied States and eventually obtain a green card. An Affidavit of Support is a legal contract that the sponsor spouse must sign to show that he or she has the means to financially support the immigrant spouse and that the immigrant spouse will not utilize public assistance such as food stamps, Medicaid or some other type of public benefit programs. The sponsor spouse must show that he or she has enough income and/or assets to maintain the immigrant spouse and any other members of the household at 125 percent of the Federal Poverty Guidelines. For a family of two people, 125 percent of the poverty guidelines is currently $17,500.00 annually. This figure is subject to change every year.

When does the Affidavit of Support or green card sponsorship end? Will divorce terminate my obligation?

The contract is enforceable for a substantial period of time and does not terminate because of a divorce, no matter how long the marriage lasts. In fact, the sponsor spouse's obligation to support the immigrant spouse continues until the immigrant spouse becomes a United States citizen, can be credited with 40 qualifying quarters of work in the United States, the immigrant spouse becomes subject to removal, but applies for and obtains in removal proceedings a new grant of adjustment of status, based on a new affidavit of support, if one is required, either spouse dies or if the immigrant spouse ceases to be a lawful permanent resident of the United States and leaves the country.

If the immigrant spouse does end up utilizing some form of public assistance, it is possible the agency providing the assistance to ask the sponsor spouse to reimburse the agency for the amount of benefits it has provided and if the sponsor spouse does not do so they may find themselves being sued by that agency.

What will a divorce court consider when dealing with spousal maintenance of a foreign spouse?

Whether the sponsor spouse will ultimately have to pay spousal maintenance as the result of a divorce hinges on a number of factors. Certainly, if the sponsor spouse signed an Affidavit of Support, he has a contractual obligation to support his or her spouse to a certain point. However, the court may also consider the immigrant spouse's own income, assets and any other sources of support to reduce the sponsor spouse's support obligation. In other words, the sponsor spouse is not automatically required to support the immigrant spouse at the entire amount per the Federal Poverty Guidelines, but may be required to make up any shortage needed to comply with the guidelines once the immigrant spouse's assets are accounted for. In addition, the Court will look at the factors provided for in Minnesota Statute Section 518.552, to determine the amount and duration of the maintenance which are:

    1. The financial resources of the spouse seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that part as custodian;

    2. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting;

    3. The standard of living established during the marriage;

    4. The duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

    5. The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

    6. The age, and the physical and emotional condition of the spouse seeking maintenance;

    7. The ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

    8. The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business.

As you can see from the statutory factors listed above, the immigration status of the sponsored spouse is not stated as a factor. But his or her immigration status may directly or indirectly effect one or more of these factors and therefore, may be considered by the judge as a periphery concern. For example, if the immigrant spouse is unable to work because he or she lacks the proper work permit from the Immigration Service - INS - or USCIS, this affects the factors considered by the judge.

If a judge orders spousal maintenance, how long will it be paid?

Spousal maintenance may be temporary or permanent. Generally, long term marriages where there is a significant disparity in income will mean a permanent maintenance award of a higher amount, although there are certainly ways to buy-out the other party's maintenance if there are enough assets to do so. It is also important to remember that the receipt and payment of spousal maintenance has different tax consequences. The person receiving the maintenance must report it as taxable income and the person paying maintenance can deduct it as a dollar for dollar offset against his or her earnings.

As each case is unique, it is important to obtain the opinion of a divorce and immigration attorney regarding the law and how it applies to your specific situation.

For more information on spousal maintenance or immigration, please contact Vincent Martin at vmartin@cundyandmartin.com or call (952) 746-4111.