It is well settled that one spouse may be required to support another spouse, during and after the divorce, to meet the reasonable needs of the recipient spouse under New York law. In divorces cases in which one spouse is an immigrant, New York courts often consider the U.S citizen or permanent resident spouse's financial responsibility imposed by both New York state law and federal immigration law when deciding maintenance and equitable distribution of marital property.

In awarding maintenance to a spouse, New York courts must consider the reasonable needs of the recipient spouse and the pre-separation or pre-divorce standard of living in the context of the factors enumerated in Domestic Relations Law of the State of New York, which include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance.

One of the purposes of an award of maintenance is to encourage economic independence, which is the most relevant to a divorce case involving an immigrant. When considering an award of maintenance New York courts consider the difficulty of an immigrant spouse to earn economic independence due to his or her immigration status. Recently, a husband was ordered to support the wife for her life because as a means of exerting power over his wife the husband had intentionally neglected to take the steps necessary to assist the wife in obtaining legal immigration status in this country and caused the wife to be placed in a state where her immigration status is vulnerable. The court has also noted that the wife's immigration status prevents her from being a recipient of public assistance and from obtaining employment. Therefore, life-time maintenance was awarded to the wife.

The amount and duration of maintenance is a matter committed to the discretion of the trial court and every case must be determined on its unique facts. It is therefore important to present to the court the unique facts in each matrimonial action involving an immigrant. For example, many immigrants in New York are gainfully employed. However, a divorce may cause unfortunate disruption in their career and cause significant financial loss because they can lose their lawful immigration status and have to stop working if they cannot timely regain nonimmigrant worker status. In these cases, it would only be fair if the court requires one spouse to take financial responsibility until the immigrant spouse can resume his/her employment that is comparable to his/her education, experience, and professional qualifications.

Almost every person married to an immigrant signed an Affidavit of Support (Form I-864) to sponsor the immigrant spouse's emigration to the United States. Such an Affidavit of Support is a legally enforceable contract under which the sponsor agrees to provide support to maintain the sponsored immigrant at an annual income that is not less than 125 percent of the federal poverty line until the occurrence of a qualifying terminating event.

A divorce does not terminates a sponsor's financial obligation imposed by the Affidavit of Support executed in accordance with federal immigration law. During the divorce, a person who has signed an Affidavit of Support under federal immigration law may withdraw the Affidavit of Support. In an adjustment of status case, a withdrawal of the Affidavit of Support is not effective unless it is in writing and USCIS actually receives the withdrawal before the final decision on the adjustment application. If an Affidavit of Support has been effectively withdrawn, then the sponsoring spouse will be free from any financial responsibility to the immigrant spouse imposed by the federal law.

In the case where the sponsoring spouse is unable to withdraw his/her Affidavit of Support, the sponsoring spouse will have to understake his/her support responsibility even after the divorce. Pursuant to federal law, an action to enforce an Affidavit of Support may be brought in any appropriate court by a sponsored immigrant with respect to financial support. The federal law expressly permits the sponsored immigrant spouse to bring an action for enforcement of the Affidavit of Support against the sponsoring spouse in any federal or state court. About six months ago New York State court made its first ruling about one spouse's financial responsibility to another under the Affidavit of Support. The court ruled that Supreme Court of the State of New York is a proper court for an immigrant spouse to seek support from the sponsoring spouse during the divorce action. Clearly, New York State courts will enforce a sponsoring spouse's financial obligation towards the immigrant spouse under an Affidavit of Support in the context of a divorce action.