Prenuptial agreement cannot waive enforcement? Erler v. Erler (N.D. Cal. Nov. 21, 2013).

A second federal district court has weighed in on whether a prenuptial agreement may waive an immigrant-beneficiary’s right to seek enforcement of the I-864.  Previously, in Blain v. Herrell, a district court in Hawaii had concluded that a premarital agreement could waive a beneficiary’s rights to enforce the I-864, on the reasoning that the beneficiary was entitled to bargain away her own private rights if she chose.  No. 10-00072 ACK-KSC, 2010 U.S. Dist. LEXIS 76257 (D. Haw. July 21, 2010). In Erler v. Erler the parties entered into a premarital agreement stating that “neither party shall seek or obtain any form of alimony or support from the other.”  CV-12-02793-CRB, 2013 WL 6139721 (N.D. Cal. Nov. 21, 2013). When the immigrant-beneficiary brought a contract action on the I-864 to recover support arrearages, the sponsor sought summary judgment, arguing that the premarital agreement rendered the I-864 contract “void.”  The court rejected this contention on two grounds.  First, the court held that premarital agreement could not waive rights under the I-864, as the premarital agreement was executed before the I-864.  These facts distinguished Blain v. Herrell, in which the premarital agreement was executed after the I-864.  Second, the court held that the defendant-sponsor could not “unilaterally absolve himself of his contractual obligation with the government by contacting with a third party.”  This reasoning fundamentally departs from Blain v. Herrell, where the court reasoned that a beneficiary’s private rights were her own to waive if she chose.  Indeed, the Department of Homeland Security itself has opined that a beneficiary may elect to waive her right to enforcement of the I-864.

The Erler case injects new uncertainty into whether a sponsor and beneficiary can waive enforcement of the I-864.  In my view Erler got it wrong: a beneficiary's I-864 rights are in the nature of private rights under a contract.  Normally a contract beneficiary - including a third-party beneficiary - may elect to bargain away her rights.  By contrast, it is less likely that a sponsor could contract his way out of his obligation to repay means-tested public benefits received by an immigrant-beneficiary (the second of two promises made under the I-864).  This promise gives no bundle of rights to the beneficiary, who therefore has nothing to waive.

The Erler court also suggested that allowing waiver of I-864 enforcement would serve an end-run around the policy basis for the I-864.  This reasoning circles back on a common area of confusion: how should courts account for the statutory framework behind the I-864?  Courts commonly treat I-864 rights as a confusing hybrid of statutory and contract rights.  Why and how is the policy basis for the I-864 relevant to the waiver issue?  Is it because the premarital agreement was rendered void (i.e., as against public policy)?  The Erler court does not tell us.  If courts look beyond the four corners of the I-864 to determine parties' rights they should be clear about why they are doing so.