How Do Prenuptial Agreements Affect Affidavits of Support?

While many couples decide to sign a prenuptial agreement before walking down the aisle, for international couples, a prenuptial agreement can raise additional questions. A common question is whether or not a prenuptial agreement can protect the U.S. citizen spouse from any obligation under the Affidavit of Support (also known as Form I-864), that is a mandatory part of the immigration process. Unfortunately, this is a complex question involving multiple issues, including which state you live in as this affects how the prenuptial agreement will be interpreted and enforced. 

Under the Supremacy Clause of the U.S. Constitution, Congress has “broad undoubted power over the subject of immigration and the status of aliens, “stemming from its constitutional power to ‘establish a uniform Rule of Naturalization’ and from its ‘inherent power as sovereign to control and conduct relations with foreign nations.’” Arizona v. United States, 132 S. Ct. 2492, 2500-01 (2012). Therefore, neither a premarital agreement nor a divorce may terminate an obligation of support under USCIS Form I-864. In short, if you are marrying a foreign spouse, you should expect that you may be bound by the Affidavit of Support, even if your spouse agrees to waive his or her rights under the Affidavit of Support or you have a perfectly worded and executed prenuptial agreement in accordance with the domestic relations laws of your state.

A prenuptial agreement becomes binding at the moment that it is properly executed and signed by both parties. Ideally, the execution of the prenuptial agreement would involve some degree of negotiation, both parties being represented by their own attorneys, and enough time before the wedding ceremony for the agreement to be considered mutually agreed upon, and not coerced. The Affidavit of Support or Form I-864 becomes a legally binding contract at the time that your spouse’s immigration application is granted and/or he or she is “admitted” to the United States. 

What exactly is the I-864 Affidavit of Support?

  Any person seeking admission to the United States as a family-sponsored immigrant must be the beneficiary of an affidavit of financial support. Without an affidavit of financial support, your spouse is considered inadmissible to the United States on the ground that he or she could become a public charge. Even if your fiancee or spouse has plenty of income or assets of his or her own, you will be required to sign an Affidavit of Support in order for the immigration process to be complete. Your income and assets will be used to determine whether you meet a threshold of 125% of the federal poverty guideline. The Affidavit of Support warns sponsors that “[i]f you do not provide sufficient support to the person who becomes a permanent resident based on the form I-864 that you signed, that person may sue you for this support.” 

How can I end the Affidavit of Support obligation? 

  The I-864 contract creates an obligation to support under federal law until one of the five conditions can be shown to have occurred:

  1. The sponsored immigrant becomes a U.S. citizen;
  2. The sponsored immigrant has worked or can be credited with working 40 qualifying coverage quarters (defined by the Social Security Act, 42 U.S.C. §413);
  3. The sponsored immigrant no longer has permanent resident (green card) status and has departed the U.S.;
  4. The sponsored immigrant becomes subject to removal from the U.S. but obtains a new grant of adjustment of status; or
  5. Either the sponsor or the sponsored immigrant dies. 


Just under the listing of the circumstances that would terminate the obligation, the I-864 form specifically warns in bold print that divorce does not end the obligation of support: “Divorce does not terminate your obligations under this Form I-864.” Under federal law, neither divorce nor a premarital agreement terminates an obligation of support.

Courts have handled this issue in different ways. The Ninth Circuit recently addressed this issue in the Erler case. (Erler v. Erler, 824 F. 3d 1173, (9th Cir. 2016)). Relying upon case law established by the Seventh Circuit, the Ninth Circuit concluded: “Thus, under federal law, neither a divorce judgment nor a premarital agreement may terminate an obligation of support. Rather, as the Seventh Circuit has recognized, “[t]he right of support conferred by federal law exists apart from whatever rights [a] sponsored immigrant might or might not have under [state] divorce law.” Liu v. Mund, 686 F. 3d 418, 419-20 (7th Cir. 2012).” (Erler v. Erler, 824 F. 3d 1173, (9th Cir. 2016). 

The Ninth Circuit, and other courts across the country appear to have reached a consensus that an Affidavit of Support is enforceable, even if a prenuptial agreement has been executed and is otherwise valid and enforceable. While parties may still negotiate this issue in a prenuptial agreement, the U.S. Citizen spouse should recognize that there is no way to guarantee that it will be enforceable, as the I-864 contract created under federal law would trump the prenuptial agreement.