How Divorce Impacts Immigration and Public Charge Determinations
For immigrant spouses living in Florida, the end of a marriage does not simply affect personal and financial circumstances—it can carry significant implications for future immigration proceedings, particularly in relation to public charge concerns. The term “public charge” refers to a non-citizen who is likely to become primarily dependent on government assistance. A finding of public charge can result in denial of a visa, adjustment of status, or entry into the United States.
The rules around public charge have evolved over time and continue to shift depending on federal policy changes. However, one constant remains: divorce can dramatically change the financial profile of a non-citizen spouse. This change can create questions about eligibility for future immigration benefits, trigger concerns over dependency on public assistance, and complicate the enforcement or implications of affidavits of support (Form I-864).
A Tampa divorce lawyer must understand how to approach these issues in a manner that protects both immigration status and legal rights under Florida family law. This article explores the relationship between divorce and public charge findings, the role of financial support, the enforceability of sponsorship obligations, and how Tampa courts handle these complex cases.
Understanding Public Charge in the Immigration Context
A public charge is someone who is determined by immigration officials to be likely to rely on government assistance in the future. This determination is most often made when:
- A non-citizen applies for a green card (adjustment of status)
- A non-citizen applies to enter the U.S. on certain visas
- In limited cases, when a non-citizen applies for an extension of status
Immigration officials consider a number of factors when evaluating public charge risk, including:
- Age
- Health
- Family status
- Financial resources
- Education and skills
- Affidavit of Support from a sponsor (Form I-864)
Certain public benefits, like cash assistance (SSI, TANF), long-term institutional care, and certain state/local programs, can be counted against an applicant. Others, such as Medicaid for emergencies, WIC, and school meals, are not currently counted in most public charge assessments.
A Tampa divorce lawyer must assess how a divorce could affect a client’s likelihood of being seen as a public charge, particularly if the immigrant spouse becomes financially unstable as a result of the separation.
How Divorce Changes the Public Charge Analysis
When a non-citizen spouse divorces their U.S. citizen or lawful permanent resident spouse, several factors may trigger public charge concerns:
- Loss of Household Income
The non-citizen may no longer have access to their spouse’s income, which could lead to financial instability. - Potential Reliance on Public Assistance
Without support, the non-citizen may apply for public aid, especially if they have children. - Inability to Secure Employment or Health Insurance
If the non-citizen relied on the sponsoring spouse for work authorization or employer-based coverage, divorce may eliminate these resources. - Withdrawal of Form I-864 Sponsorship
While a sponsor cannot cancel Form I-864 after green card issuance, divorce may impact enforcement or raise questions about continued eligibility if naturalization or other applications are pending. - Impact on Removal of Conditions (Form I-751)
For conditional residents, divorce may make it harder to prove the marriage was in good faith and raise additional scrutiny of the applicant’s financial independence.
Each of these factors can alter the way immigration authorities view the immigrant’s financial stability. A Tampa divorce lawyer must carefully structure spousal support agreements, custody arrangements, and asset division to help shield clients from adverse findings in future immigration proceedings.
The Role of the I-864 Affidavit of Support
Form I-864, Affidavit of Support, is a legally binding contract between the sponsoring spouse and the U.S. government. The purpose is to ensure that the immigrant spouse does not become a public charge.
Key features of I-864:
- The sponsor promises to support the immigrant at 125% of the Federal Poverty Guidelines
- The obligation begins when the immigrant becomes a lawful permanent resident
- The obligation continues until the immigrant:
- Becomes a U.S. citizen
- Has worked 40 qualifying quarters (approx. 10 years)
- Leaves the U.S. permanently
- Dies
Importantly, divorce does not terminate the I-864 obligation. This means the U.S. citizen or permanent resident spouse who sponsored their immigrant spouse remains financially responsible long after the marriage ends.
For a Tampa divorce lawyer, this has several implications:
- Even if the divorce court does not award alimony, the immigrant spouse may sue the sponsor in federal court to enforce the I-864.
- The existence of the I-864 can serve as a strong argument against a public charge finding.
- The sponsor may be required to continue support even if they experience financial hardship or remarry.
Courts across the U.S. have enforced I-864 obligations post-divorce. Therefore, in Tampa divorces involving immigrant spouses, it is critical to address the I-864 in both settlement negotiations and final judgments.
Alimony and Public Charge Protection
Alimony in Florida is designed to address a spouse’s need for support and the other party’s ability to pay. While it is distinct from the federal I-864 obligation, alimony can serve as a shield against a public charge determination by demonstrating that the immigrant spouse has adequate financial resources.
Types of alimony available in Florida include:
- Temporary alimony
- Bridge-the-gap alimony
- Rehabilitative alimony
- Durational alimony
A Tampa divorce lawyer should consider requesting spousal support when representing a non-citizen spouse who may face public charge issues. This is particularly true when:
- The non-citizen has dependent children
- The immigrant lacks immediate earning capacity
- The immigrant cannot receive support from other family members
- There is a pending immigration application that requires evidence of self-sufficiency
In some cases, temporary alimony combined with the I-864 support may be enough to demonstrate financial independence. The key is to create a support structure that meets the immigrant’s needs and satisfies the public charge inquiry.
When Public Benefits Are Considered in Divorce
Immigrants often fear that accepting public benefits could harm their status. While this concern is not unfounded, Florida divorce proceedings are focused primarily on state law issues like:
- Child support
- Equitable distribution
- Timesharing
In these areas, receiving public benefits such as food stamps, Medicaid, or housing assistance may come up during financial affidavits or court testimony. A Tampa divorce lawyer must be prepared to:
- Explain the nature of the benefits received
- Clarify whether the benefits are included in public charge calculations
- Show that the immigrant is taking steps toward financial independence
As of the current public charge policy, non-cash benefits and benefits used by U.S. citizen children are generally not counted against the immigrant parent. Still, transparency in financial disclosures is vital to avoid contradictions that could be used later in immigration reviews.
Custody and Child Support: Reducing the Risk of Public Charge Findings
In cases involving minor children, child support orders can play an important role in ensuring the immigrant parent remains above the public charge threshold.
Florida courts calculate child support using the state’s statutory guidelines, considering:
- Both parents’ incomes
- Time-sharing arrangements
- Health insurance costs
- Childcare expenses
For the immigrant parent, child support may provide essential income and can be cited as a financial resource in immigration filings. A Tampa divorce lawyer should:
- Ensure that a child support order is entered
- Document consistent receipt of support payments
- Include the income in financial affidavits for USCIS or NVC purposes
If the U.S. citizen parent fails to pay court-ordered child support, this failure can undermine the immigrant’s stability and create risk. Legal remedies such as enforcement proceedings, income withholding orders, and contempt motions can be used to protect the immigrant parent and the children involved.
Negotiating Divorce Settlements With Public Charge in Mind
Settlement agreements in Tampa divorces involving immigrants should account for both legal and immigration needs. A poorly drafted agreement may undermine a pending green card or adjustment of status application.
A Tampa divorce lawyer should:
- Include language clarifying continued I-864 responsibility
Even if no alimony is awarded, acknowledging the federal obligation can preserve future enforcement rights. - Allocate marital property to support financial independence
Assets such as vehicles, bank accounts, or real estate may help the immigrant remain self-sufficient. - Structure support to reflect immigration deadlines
Temporary alimony can be extended to bridge gaps in employment or to satisfy a USCIS officer’s inquiry. - Avoid waiving rights unnecessarily
Immigrant spouses should not waive claims to support without understanding the effect on their immigration status. - Coordinate with immigration counsel
Divorce and immigration timelines must be aligned to avoid missed filings or status changes that result in removal or denial.
Carefully negotiated settlements can satisfy both family court standards and USCIS expectations, reducing the likelihood of a public charge finding.
Defending Against Public Charge Allegations Post-Divorce
In some cases, a non-citizen spouse may face allegations during or after divorce that they are likely to become a public charge. This could arise:
- During a naturalization interview
- While applying for removal of conditions (Form I-751)
- In visa applications for relatives
- During deportation proceedings
A Tampa divorce lawyer can help create a record that supports the immigrant’s financial viability. Strategies include:
- Submitting copies of child support or alimony orders
- Providing evidence of ongoing education or job training
- Demonstrating receipt of support under Form I-864
- Offering affidavits from third parties confirming financial assistance
These materials may be prepared for both family court and immigration proceedings, building a cohesive defense that reinforces the immigrant’s lawful presence and long-term self-sufficiency.
What Happens If an Immigrant Spouse Becomes a Public Charge?
If USCIS determines that an immigrant has become or is likely to become a public charge, consequences may include:
- Denial of adjustment of status
- Denial of admission to the U.S.
- Revocation of certain benefits
- In rare cases, initiation of removal proceedings
USCIS may also require the immigrant to post a bond as a condition of admission or continued status. A Tampa divorce lawyer should work with immigration counsel to:
- Challenge the public charge finding with updated financial documents
- Submit alternative affidavits of support
- Demonstrate rehabilitation from past reliance on benefits
While current policy generally limits public charge findings to specific types of benefits, a history of financial instability tied to divorce can still create problems for immigrants in Florida.
The Public Charge Rule and Future Immigration Policy Changes
Immigration policy is subject to political change. The public charge rule has been reinterpreted multiple times, including major revisions in 1999, 2019, and 2022. What counts against an immigrant today may not be penalized tomorrow—and vice versa.
This uncertainty makes it vital to:
- Avoid overreliance on public benefits
- Maintain private financial records
- Secure enforceable support orders
- Preserve a paper trail that demonstrates financial independence
A Tampa divorce lawyer must understand that even if public charge assessments are temporarily relaxed, future administrations may tighten the rules again. Planning for long-term resilience is the most prudent approach.
Conclusion: Protecting Immigration Status and Financial Stability Through Strategic Divorce Planning
Divorce is never simple, but for immigrant spouses in Florida, it carries a distinct set of challenges. Public charge concerns amplify the stakes of financial decisions made during the dissolution process. Whether a client is a conditional green card holder, a permanent resident seeking naturalization, or a recently arrived spouse with no income, the risk of being deemed a public charge must be managed carefully.
A Tampa divorce lawyer plays a central role in this process by:
- Crafting equitable support agreements
- Preserving the enforceability of I-864 obligations
- Coordinating with immigration professionals
- Shielding immigrant spouses from financial ruin
By integrating immigration considerations into every step of the divorce, the legal strategy not only complies with Florida law but also protects against future immigration denials, deportation, and family separation. Divorce may end a marriage, but it should not end a non-citizen’s chance for stability and lawful status in the United States.
FAQ: Divorce and Public Charge Concerns for Immigrants in Florida
Will my green card be taken away if I get divorced and go on public assistance?
Not necessarily. Receiving certain public benefits doesn’t automatically revoke your green card, but it may affect future immigration applications or adjustments.
Does divorce cancel the I-864 affidavit of support?
No. Divorce does not terminate the sponsor’s obligation. The U.S. citizen or resident sponsor remains financially responsible until specific conditions are met.
Can I still get a green card after divorce if I’m financially unstable?
It depends. You may need to file a waiver and show evidence of financial support from another source or that you will not become a public charge.
What benefits count against me in a public charge review?
Generally, cash assistance like SSI or TANF and long-term institutional care may be counted. Non-cash benefits like WIC or Medicaid for emergencies typically are not.
Will Florida courts enforce the I-864?
No, enforcement of I-864 obligations usually occurs in federal court. However, the affidavit can be referenced in family court when discussing financial resources.
Can child support help me avoid a public charge finding?
Yes. Court-ordered child support is a recognized source of income and can help demonstrate financial stability during immigration reviews.
Does receiving food stamps for my children count against me?
Benefits received by U.S. citizen children do not count against the immigrant parent under current policy.
Can my ex-spouse stop supporting me after divorce even if they signed the I-864?
They may stop paying alimony if the court doesn’t require it, but the I-864 obligation remains enforceable and can be pursued in federal court.
Will filing for divorce harm my immigration case?
It can, depending on your status and timing. Work with both a Tampa divorce lawyer and an immigration attorney to protect your rights and status.
Should I accept public assistance after divorce?
Only if absolutely necessary, and after consulting with legal counsel. Some benefits can trigger scrutiny, while others may not affect your immigration status at all.
The McKinney Law Group: Tampa Divorce Representation Grounded in Experience and Results
At The McKinney Law Group, we provide the experience and foresight you need to protect your interests during divorce. We help clients in Tampa resolve their cases efficiently—without sacrificing what matters most.
We handle:
✔ Filing, strategy, and timeline management
✔ High-conflict custody and relocation disputes
✔ Asset division including real estate, investments, and personal property
✔ Alimony and child support tailored to financial realities
✔ Enforcement and modification of divorce judgments
Contact our team at 813-428-3400 or email [email protected] for a confidential consultation.