Divorcing Spouse, Need Advice

[shameandremorse 0]

My spouse and I have been together for many years now, and I apologize for posting under a different username, but I'm humiliated and don't want to be recognized by people we know.

Unfortunately, my spouse can be quite vindictive, and I am afraid they will try to do anything they can under the AoS just to cause problems for me. My spouse has actually already threatened such things, which is why I'm here.

First of all, my spouse has not had the ROC yet, that happens this year. I know it's possible for my spouse to remove conditions alone, and I really don't want to stop my spouse from living here in the US because outside of our relationship my spouse is extremely productive and has a bright future.

We're both students, and I do not have the means to support my spouse any longer as we both went back to school to build a better future for ourselves. My spouse has threatened to pursue the AoS in court against me when we divorce (my spouse wants the divorce, not me). I have read several times that my spouse can not claim means-tested benefits from the government for five years, and that the AoS is a contract between me and the government to reimburse the government for any means-tested benefits they pay out. But, I've also read that it takes a good lawyer to take that to court and I do not have any money as we're both living on student loans at the moment.

My fear is that my spouse will divorce me, and then out of spite will sue me for 125% of income support knowing that I will have to either take on more student loans to support them or drop out of school entirely to pick up a low paying job to support my spouse and myself. In this scenario, my spouse could continue on into a bright career and essentially destroy mine out of revenge, and I fear that my spouse is the kind of person to do this as they have already threatened to.

Can anyone clear up any misconceptions I may have about the AoS? Is it likely that my spouse will do this to me? If my spouse takes out student loans, do those count at all towards satisfying the income requirements? What happens if I do not have any income at all as we're both living on student loans at the moment?

Note: My spouse wants to divorce me. I do not hate my spouse at all, and do not wish to hinder my spouse's future, I still love my spouse very much. My spouse is suicidal and physically / verbally abusive at times, but I've tried to be there knowing that it's hard to be away from home. I would divulge more, but it's not worth knowing, except to know that I am not planning to swindle or harm my spouse, only see how to move on with my own life when my spouse divorces me.

Edited January 11, 2013 by shameandremorse

[Newbie608 103]

You kept saying they. Who are "THEY"? Why are you referring to your spouse and they?

[shameandremorse 0]

Unfortunately, English does not have gender neutrals pronouns, so I am using "they" to add variety. Replace "they" with "he/she" if that makes it more readable. I do not wish to refer to the gender of my spouse, in case he/she reads this, I wish to obfuscate some details to avoid the possible wrath of my spouse.

[Fireandash 1]

I strongly recommend a book called The Surrendered Wife, and The Surrendered Single.

Both books clearly describe how to act as a wife and single gal. It also clearly states that you should never be in a relationship with people that are abusers. So as much as you love your spouse you need to report the abuse to the authorities.

By reporting abuse, your are creating a paper trail much like the paper trail you had to claim for your spouse to get into the USA. You can also call Homeland security and get their advice. From what you explained there is the possibility in by getting a divorce, Homeland security could also charge you with fraud. The best thing to do is expose the spouse as a fraud with government paperwork, which from what you are saying sounds like that is what is going on.

When you call homeland security, do give them your name and case file if you have one, that your spouse is abusing(tell them how) you, threatening you (with financial support), threatening you with divorce. After you talk to homeland security, call the police and file a domestic abuse complaint unless homeland security tells you otherwise.

Respect yourself, protect yourself and don't be held liable for fraud for a person who doesn't love you back.

(Sorry I assumed your spouse was a male! I didn't realize none was stated.)

Edited January 11, 2013 by Fireandash

[Asia 2,498]

My fear is that my spouse will divorce me, and then out of spite will sue me for 125% of income support

I don't think your spouse can do that.

Sorry to hear about your situation.

[blankmedia 41]

Well, I think your spouse is a lady as this seems written by a man, but that's not the topic. I'm pretty sure the affadavit is an agreement between yourself and the us government, not yourself and your spouse. She cannot sue you for not providing for her once you are divorced, but the Us Gov. can sue you for any costs she incurs from using public assistance or food stamps or whatever it may be. But, since you say your spouse has a bright future/career here, spouse probably wouldn't qualify for assistance anyhow, so probably not much of a concern.

[shameandremorse 0]

Thanks to those who have already responded. I am not sure that my spouse can't do that. Reading the affidavit of support, I found the following language (granted it's not part of the contract).

"If you do not provide sufficient support to the person who becomes a permanent resident based on the I-864 that you signed, that person may sue you for this support."

Sadly, I fear it may be in my spouse's nature to do this. Is there anyone on VJ who is familiar with this? Because, the contract was between myself and the US government, yet the language of the contract implies that the LPM may sue the USC for support despite not being a signatory. Help please.

[shameandremorse 0]

Edit: The quote I posted above IS part of the contract. My mistake.

[Darnell 8,479]

is exceptionally rare that the Affadavit of Support is reviewed during a divorce hearing.

If that , indeed, does turn out to be the case for you - be certain your attorney is well versed in the concept of contractual law -

the I-864 is a contract between the petitioner and the USGovernment for the beneficiary, when utilizing means-tested benefits; the USGovernment will want their monies reimbursed from the Petitioner.

Don't confuse those amounts for a possible monthly payment to the divorce/e - and it's that area that your attorney must get up to speed on, if/when.

Good Luck !

[Villanelle 4,122]

One of the best parts of a divorce is that you are free to include whatever terms you want in it and subsequent 'punishments' if the conditions are broken. They can include things that might seem trivial to outsiders like wife gets to keep the house but agrees never to paint it blue while she lives there and if she does husband can sue her for 10k.

So if the 864 is of concern to you, you need to address it in your divorce. Specifically you need a clause that states your spouse agrees not to sue you in any court in the future for financial support in order to place him or her above the 125 poverty line (or appropriate wording) Youd really need assistance from an attorney for this.

You could also have a clause where your spouse would agree not to file for benefits while the 864 is in effect and if they do, they would agree to reimburse you any amounts you would then be billed from the government. Again I would recommend seeking assistance from a lawyer to prepare the appropriate wording, however if you are doing the divorce yourself, search the forum for similar threads and you could perhaps contact the posters who did have similar clauses and you could maybe use the wording from their divorces. (if you cant find the threads post back and Im sure I can dig them up)

You should be aware in order to get your spouse to agree to such clauses youre probably going to have to concede on other issues in the divorce. I dont know what other issues or assests you guys have though. But divorce is all about negotiations. So know what your spouse wants and use it to negotiate. Your spouse needs the divorce granted in a way that will work for his or her ROC. That involves the divorce being granted on grounds of irreconcilable differences and not fraud. So that could be a negotiating point. (its a dirty tactic though)

Im not really sure about any of your questions here "Can anyone clear up any misconceptions I may have about the AoS? Is it likely that my spouse will do this to me? If my spouse takes out student loans, do those count at all towards satisfying the income requirements? What happens if I do not have any income at all as we're both living on student loans at the moment?"

What income requirements? Towards paying back means tested benefits? If you signed the affidavit and were approved- youre on the hook regardless if your financial situation changed. As for what is a means tested benefit, you can use google to find out. Student loans and higher education grants typically arent means tested. Medicaid, food stamps, Heap, TANF, etc are.

[shameandremorse 0]

Sorry to bump this thread, but there is one more issue which I am hoping someone may be able to address:

I read in another thread that whatever income the immigrant receives is counted 100% towards the 125% above poverty level income on the I-864.

My question is, do student loans taken out by my spouse to pay for school count as income? At the moment, we are both living on student loans and will be for a considerable amount of time. I do not have the income to support my spouse, only access to the same student loans which my spouse is also using to pay for school. Does anyone have any information on this?

Edited January 18, 2013 by shameandremorse

[VanessaTony 3,567]

Sorry to bump this thread, but there is one more issue which I am hoping someone may be able to address:

I read in another thread that whatever income the immigrant receives is counted 100% towards the 125% above poverty level income on the I-864.

My question is, do student loans taken out by my spouse to pay for school count as income? At the moment, we are both living on student loans and will be for a considerable amount of time. I do not have the income to support my spouse, only access to the same student loans which my spouse is also using to pay for school. Does anyone have any information on this?

In my opinion no. It's a loan, not income.

You also don't need to support your spouse unless a court orders it. A court won't order it if you have no income. Income is money you EARN, not money you BORROW.

[Villanelle 4,122]

When it comes to welfare/medicaid/foodstamps- Student loans is considered 'exempt income'.

Theres a federal law that states- All student financial assistance issued under title IV, shall not be taken into account when determining the need for benefits, or the amount of benefits. (when its financed with federal funds)

Heres a link for a document from Wash state, however you can look up your specific states website, for their income requirements and exclusions. But it will be the same as it is a Federal regulation, not a state regulation.

http://www.washingtonlawhelp.org/files/C9D2EA3F-0350-D9AF-ACAE-BF37E9BC9FFA/attachments/5FF1A0C4-3824-4FF3-937A-916F75227333/7914en.pdf

So with out a clause in the divorce stating she would either not seek out welfare benefits or repay you for any she collects, if her only income is student loans, she would definitely be able to collect and you would definitely be obligated to repay.

But before you go panicking, you should be aware there are not many publicized cases of sponsors being pursued for repayment. While its part of the contract, there are no clear statistics on how often its enforced or how much money is recouped. I believe very recently Jim posted something about NJ going after 300 sponsors or so before ceasing. I suspect it was because the cost outweighed the money they recouped. (You should do a search and see if you could find it because it was very recent)

Also I understand you have concerns you spouse may attempt to sue you for additional support. It would be a very difficult case for her to win and if she is on a limited income, she may not be able to afford an attorney for it. From a legal standpoint the 864 is vague. Its called an affidavit and not a contract. In court that makes a difference. The amount of potential liability, is also undefined. An enforceable contract should have at least an estimate of liability, and here the liability is theoretically without limit.The affidavit is also what you call an adhesion contract meaning the parties were at unequal bargaining positions, you either signed it or you dont get the GC. So she would have a lot to convince the judge that the contract is legitimate and she is entitled to compensation from you under it.

But it could happen and your only defense would be to take preemptive action and secure clauses in the divorce.