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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 26319
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I would like input from a family lawyer or a contract lawyer

Customer Question

I would like input from a family lawyer or a contract lawyer (although the form in question is an Immigration form). Can a prenuptial agreement include a waiver of the beneficiary's right to sue using form I-864 Affidavit of Support (this was previously upheld in the case Blain v. Herrell)? I-864 is so the beneficiary does not become a public charge so agencies can sue for support. But it also allows the Beneficiary to sue the Sponsor which I would like her to waive in the prenup.

I read that the DHS view of the I-864 indicates that they consider the personal right to sue to be a waive-able right. I also read where it is a basic principle of contract law that a party may waive legal rights. I live in WA state.
Submitted: 1 year ago.
Category: Family Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question.

The I-864 is construed as a contract between the sponsoring spouse and the federal government, and a prenuptial agreement between the spouses agreeing to void the I-864 is not likely to be upheld. Washington state courts routinely toss out pre-nups for this type of issue on the grounds that the federal government isn't a party to the prenuptial, so it's rights can't be limited by the document.
Customer: replied 1 year ago.

I understand the government is party to it and I am not trying to change their part. But the beneficiary spouse is also party to it so couldn't she waive her part?

Expert:  Roger replied 1 year ago.
When an Affidavit of Support is signed, the sponsor is accepting legal and financial responsibility for the sponsored alien relative until he/she become US citizens or until they can be credited for 40 quarters of work. This sponsorship guarantees that the federal government can sue the sponsor in order to recover any public benefits provided to the immigrant.

Here's a good link you can read: http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter3-5.html

Because a I-864 is REQUIRED by the federal government to assure reimbursement, there's no way for the sponsor to waive his/her obligation to the federal government.

It may be possible for the beneficiary spouse may be able to waive any direct benefit, but it would likely void the integrity of the document as a whole - - which is why this likely can't be done.

It's certainly fine to put that in your prenuptial agreement, but it's not likely going to be legally upheld.
Roger, Attorney
Category: Family Law
Satisfied Customers: 26319
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 2 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.


ok understand, thank you

Expert:  Roger replied 1 year ago.
No problem - - glad to help.

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