Why a Prenup Can't Waive the I-864 Affidavit of Support

What Is the I-864 Affidavit of Support and Who Signs It?

The I-864 is a legally binding contract between a U.S. citizen (or permanent resident) sponsor and the federal government, requiring the sponsor to maintain the sponsored immigrant's income at no less than 125% of the Federal Poverty Guidelines. It's not a suggestion or a formality. It's a federal obligation with enforceable consequences.

Most family-based immigrants use this form as part of the green card application process. When a U.S. citizen sponsors a spouse for lawful permanent residence, USCIS requires the sponsor to demonstrate adequate financial means and to commit, in writing, to supporting the immigrant financially. For 2024, that threshold is $25,550 per year for a household of two in the contiguous 48 states.

The I-864 exists separately from any state-law support obligation. A state court might handle alimony, child support, or property division. The affidavit operates on a different track entirely, governed by the Immigration and Nationality Act (INA), Section 213A. This distinction matters because it means the I-864 doesn't get absorbed into divorce proceedings or overridden by a prenuptial agreement.

For international couples, the I-864 is one piece of a larger financial picture. It sits alongside the prenup, tax planning, and estate planning as something both partners should understand before they walk down the aisle. Knowing what the affidavit requires (and what it doesn't) helps both spouses make informed decisions together.

Does a Prenup Override the Affidavit of Support?

No. Federal courts have squarely and repeatedly held that a prenuptial or postnuptial agreement cannot waive the sponsor's obligations under the I-864. Even when the agreement specifically references the affidavit by name, federal courts treat that language as unenforceable.

The reasoning comes down to the Supremacy Clause of the U.S. Constitution. The I-864 is a contract between the sponsor and the U.S. government, not between the two spouses. A private agreement between spouses simply cannot undo a federal obligation owed to a third party (in this case, the government). As the court explained in Toure-Davis v. Davis (D. Md. 2014), the I-864 obligation "is separate and apart from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement."

In that case, the couple signed a prenup on their wedding day waiving all rights to alimony. The following year, the husband signed the I-864. The court found that because the I-864 came after the prenup, the sponsor had effectively replaced the prenup's waiver with a new, binding federal commitment. The immigrant spouse's motion for summary judgment on liability was granted.

The Northern District of California reached the same conclusion in Erler v. Erler (2013). There, the premarital agreement stated that neither party would seek alimony or support. The court rejected the prenup defense, finding that allowing parties to nullify support obligations through premarital agreements would "undermine the Affidavit's goal of preventing immigrants from becoming public burdens."

More recently, in Golipour v. Moghaddam (D. Utah 2020), the court denied the sponsor's motion for summary judgment, holding that a postnuptial agreement and a dowry payment did not relieve the sponsor of I-864 obligations. The pattern is clear across multiple jurisdictions: private agreements between spouses don't override federal immigration contracts.

Sometimes prenuptial agreements use broad language waiving "all support" or "alimony." Other times they specifically cross-reference the I-864. Neither approach works. Courts treat the I-864 as a separate legal instrument that only terminates under its own specific conditions.

How the I-864 Obligation Actually Works After Marriage Changes

The sponsor's duty under the I-864 continues after divorce. The form itself now explicitly states: "Divorce does not terminate your obligations under this Form I-864." This obligation persists until one of five specific events occurs.

The five terminating events are:

1. The sponsored immigrant becomes a U.S. citizen. Naturalization ends the obligation completely.
2. The immigrant earns 40 qualifying quarters of work (roughly 10 years of Social Security-credited employment). Quarters earned by the sponsor during the marriage can count toward this total.
3. The sponsored immigrant dies. The obligation ends upon the immigrant's death.
4. The sponsored immigrant permanently departs the United States or loses permanent resident status.
5. The sponsor dies. The obligation does not pass to the sponsor's estate in most circuits, though this area has seen some variation.

Until one of those events occurs, the sponsor must maintain support at 125% of the Federal Poverty Guidelines, calculated based on household size. In Erler v. Erler, the court examined how household size affected the calculation, noting that the immigrant's living arrangements post-divorce (in that case, living with an adult son) could change the support amount owed.

A notable point from the 7th Circuit's decision in Wenfang Liu v. Mund (2012) is that the sponsored immigrant has no duty to mitigate. This means the immigrant is not required to seek employment or take other steps to reduce the sponsor's obligation. The court reasoned that the required level of support is modest enough that immigrants have a natural incentive to work, and imposing a mitigation duty would contradict the purpose of the statute.

For couples planning ahead, these rules mean the I-864 obligation is not something you can negotiate away or restructure through a prenup. It's a fixed federal commitment that runs on its own timeline.

Prenup vs. I-864 Affidavit of Support at a Glance

The prenup and the I-864 serve completely different purposes, and understanding the distinction helps couples plan without confusion.

These two documents coexist rather than conflict. A prenup governs how the couple handles property and spousal support between themselves under state law. The I-864 is the sponsor's promise to the federal government that the immigrant won't rely on public benefits. One is a partnership agreement; the other is a federal obligation. Both matter, and neither replaces the other.

The practical takeaway: you can and should draft a prenup that addresses everything within its scope (property, alimony, debt allocation, business interests) while clearly acknowledging that the I-864 obligation exists independently and isn't being waived.

How Couples Plan for I-864 Income Requirements With Professionals

Couples plan most effectively by understanding the I-864 obligation from the start and building it into their broader financial planning with qualified advisors. This isn't about one spouse making concessions. It's about both partners having full clarity on what they're committing to.

At Neptune, our lawyer-led online prenup process pairs couples with experienced attorneys (20+ years of practice), CFPs, and CPAs who coordinate across the prenup, immigration, and tax dimensions of the relationship. For international couples, this coordination is especially important because the I-864 creates financial obligations that don't appear in a typical domestic prenup.

Here's what that planning looks like in practice:

1. Drafting a prenup that acknowledges the I-864. A well-drafted prenup for an international couple will address property division and alimony while explicitly noting that the I-864 obligation remains in force. This avoids any ambiguity and prevents a sponsor from later arguing (unsuccessfully, as courts have shown) that the prenup eliminated the affidavit.

2. Understanding the income floor. The sponsor needs to demonstrate income at 125% of the Federal Poverty Guidelines. For 2024, that's $25,550 for a two-person household. If the sponsor's income falls short, a joint sponsor may be needed. Planning for this scenario early avoids last-minute scrambling during the visa process.

3. Coordinating tax and financial planning. The I-864's income calculation uses the sponsor's most recent federal tax return. A CPA can help ensure the return accurately reflects income and that the couple understands how filing status, deductions, and asset reporting interact with both the affidavit and the prenup.

4. Setting shared expectations. The most valuable part of this process is the conversation it creates. When both partners understand that the I-864 lasts until a terminating event, and that the prenup handles a separate set of issues, they enter the marriage with aligned expectations.

Cost matters here, too. An attorney-drafted prenup for a couple with international considerations typically runs $4,000 to $10,000 or more, depending on complexity. DIY templates ($0 to $700) rarely account for federal obligations like the I-864 and can create dangerous gaps. For a couple navigating both immigration and prenup planning, working with professionals who understand both systems isn't a luxury; it's the baseline for getting things right.

International couples who plan together, with full information and coordinated advice, build the kind of clarity that makes the rest of the process smoother.