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According to the Appellate Division, Fourth Department, where a party signs an affidavit of support, form I-864, that affidavit is a legally enforceable contract. Moody v. Sorokina, 40 A.D.3d 14 (4th Dept. 2007). In that case, a Ukrainian national emigrated to the United States to marry her eventual husband in New York. When the husband filed for divorce several years later, the wife sought to enforce the Affidavit of Support for purposes of determining the number of support payments to be made by the husband. While the trial court rejected the wife’s argument and held that the affidavit could not be enforced in court by private parties, the Appellate Division, Fourth Department reversed the lower court and held that the affidavit of support was enforceable. The Appellate Division held that the execution of an affidavit of support creates a legally enforceable agreement between the parties involved that can be enforced by the sponsored immigrant in any federal or state court. Id. at 401. Moreover, the Fourth Department explained that the terms of the agreement are not affected by a subsequent judgment of divorce. As such, the agreement remains fully binding on all parties until the sponsored immigrant “has worked 40 qualifying quarters of coverage,” as defined by the Social Security laws. The enforcement of the right of support also includes attorneys' fees. Id.
Therefore, when the spouses separate and the immigrant spouse is unable or unwilling to work, the spouse who is a citizen of the United States will be responsible for their spouse’s support until such time as that spouse becomes self-sufficient, or perhaps even indefinitely.