Hello and thank you for the opportunity to assist you. My name is ***** ***** I will do my very best to answer your legal questions.
I'm really sorry to hear about this situation. The law is harsh with regard to Form I-864. Shumye v. Felleke is a California case which is useful in understanding your obligations under Form I-864. It states in part:
A Form I-864 is a legally enforceable contract between the sponsor and both the United States Government and the sponsored immigrant.
The signing sponsor submits himself to the personal jurisdiction of any court of the *1024 United States or of any State, territory, or possession of the United States if the court has subject matter jurisdiction of a civil lawsuit to enforce the Form I-864.
By signing a Form I-864 the “sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.”
A sponsor may also be held liable for legal fees and other costs of collection.
The sponsor's obligation under Form I-864 terminates only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. See 8 U.S.C. § 1183a(a)(2). Divorce is not a condition under which the sponsor's obligations under Form I-864 can be terminated. Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008).
The bot***** *****ne is that the obligation can continue forever if one of the 5 conditions to terminate the obligation is not met. You probably know all of that, but I'm throwing it out there for reference so we're both on the same page.
I also reviewed Cnty. of San Bernardino Child Support Div. v. Gross. It is clear that anything you pay your ex would be considered income for purposes of child support. Furthermore, in my opinion, your support would not have to be increased in order to keep your ex above the 125% threshold. If the ex-wife in Gross were to sue the parents and make that argument, I believe that she'd lose. The child support payments are her own obligation, and for these purposes no different than any other obligation she has, such as car payments, rent, etc. In other words, it makes no more sense to increase support under the I-864 to make up for child support payments that must be made than it would to increase the support under the I-864 to make up for any other expense that the immigrant has (e.g., rent, food, car payments, student loans, insurance, etc.). But again, that's my opinion, and I see no legal authority either way.
With regard to your house, unfortunately, it is possible that you could be forced to sell it depending on various facts such as the amount of equity you have, the number of people living in the house, and your age. In general, you can exempt somewhere between $75,000 to $175,000 of equity (i.e., that equity can't be taken by a judgment creditor).
As for your specific questions:
If I don't forgive the arrears debt, can he still win if he sues me for sponsor support.
A: Yes, it sounds like he can win if his income and assets put him below the 125% threshold.
Will he then have to turn around and hand back $16,000 for child support owed?
A: In my opinion, the $16,000 can be subtracted from what you owe him (though you'd need to be sure to countersue for that amount in his lawsuit against you).
Also, if he sues me and I have to pay him, can I turn around and ask for more child support?
A: Yes, I believe that anything you pay him would be counted as income for purposes of computing child support.
Would you forgive this debt if you were me?
A: I would not forgive the $16,000. Instead, I would let that amount continue to accrue interest in case he ever sues you. Also, I would not even mention the I-864. He may be unaware of his ability to sue you. After all, the obligation under the I-864 could theoretically last forever ... certainly much longer than his child support obligations since your children will eventually be adults.
I am hoping that you will say that with $16,000 of arrears child support, the judge might not let him win.
A: Unfortunately, the child support arrears would have nothing to do with his ability to successfully sue you under the I-864.
Also, can he sue me at any time for life long support (he will never become a citizen or work 40 quarters) or just when he collects social services?
A: I'm sorry to say that he can sue you for life long support. However, whatever he collects in income from other sources would be used to calculate whether or not he's above or below the 125% threshold. Also, even if he's below that threshold, any income he receives can be subtracted from what you would be required to pay him. In other words, you would only be required to make up the difference needed to put him above the 125% threshold.
One last thing, I live on disability income but there is a trust which takes care of the needs of my kids. Can he go after my house which I own which is also in a trust?
A: This may have a silver lining. He probably cannot garnish your disability payments if he were to successfully sue. Disability payments cannot generally be garnished by judgment creditors. Also, it is probably possible to shield the house in a trust. I'm not sure that you have the trust set up such that it would do so, but my suggestion would be to consult with a local attorney to review your trust and set up a new one if necessary.
Does that answer your questions? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied.