Divorce and Immigration Status in the U.S.
Are you either a U.S. citizen divorcing an immigrant or an immigrant divorcing a U.S. citizen? Whatever your case may be, we understand that divorce is a complicated matter for both parties, especially when it involves subjects like lawful status.
In this article, we will help you to figure out what are the next steps you should take in this process and what are your options when facing a separation or divorce.
What is the difference between a trial separation and divorce?
First, let’s understand the difference between separation and divorce. A trial separation is when a couple remains legally married but lives apart, meaning that there’s no need to file court papers. While you’re separated, nothing changes legally: the same legal rules apply as to when you are married, since the government is not involved. In cases where the relationship has no chance of future settlement, a divorce might be the best alternative.
What is a divorce?
To get a divorce means that the marital estate is going to be formally dissolved and assets may be divided; arrangements are made for the children (if applicable) and the spouses may return to their former last name. Whether both spouses agree to the divorce or not, one spouse must file a legal petition asking the court to bring the marriage to an end. It is important to know that divorce laws vary from state to state and you should always check your options with an Immigration Attorney.
What are the types of divorce?
If you would like to know more about the types of divorce, the procedures for obtaining it, as well as information regarding property division in a divorce, please have a look at this article.
Is there another option for the couple other than divorce?
There is also the option of legal separation. In some states, a period of legal separation may even be required before initiating the divorce proceedings. To get a legal separation, you must file a petition in a family court, notifying that the couple is currently separated. Through this petition, the government will be updated on your status and you will no longer be legally married. Although, it is important to mention that you are also not divorced , and, as a consequence, you can’t marry another person. Some people choose this instead of divorce due to religious beliefs or to maintain certain health insurance benefits, which would be lost in the event of a divorce.
What happens to my immigrant status in case of a divorce?
If you are currently a conditional resident in the United States, meaning that your marriage is less than two years old, a separation or divorce may affect your legal status. A conditional residence status lasts for two years, upon which the conditional resident must file a petition to the USCIS in order to attain full permanent residence status. If the marriage lasts less than two years, the non-citizen spouse may lose their immigrant status and become subject to deportation.
Is there a way to prevent the loss of immigrant status due to divorce?
A waiver can be requested, claiming the following grounds: extreme hardship if deported, termination of a good faith marriage, or if the person suffered any kind of violence by the US citizen spouse.
I’m a permanent resident. How will divorce affect my immigrant status?
If you are currently a permanent resident, getting a divorce does not severely affect your immigration status, but it may delay obtaining citizenship if you wish to get it. Getting divorced from a US citizen spouse could mean that you will have to wait approximately five years before you can be eligible to apply for U.S. citizenship. During your citizenship application process, the USCIS officer will also try to find out if the marriage was genuine while it lasted, and wasn’t just for the sole purpose of obtaining an immigration benefit.
Will I lose child custody due to divorce?
When it comes to determining child custody, state laws generally do not see the immigration status as an impediment, since the court always values the best interest of the child. To be awarded custody, you will have to legally prove that you are able to care for your children, meaning you will need to provide evidence of sufficient financial resources and reliable ways of supporting their needs and education.
I’m a U.S. citizen responsible for sponsoring my spouse and now we are divorcing, what do I have to do?
If you are the sponsor of your spouse and the marriage has ended, it is recommended that you withdraw any Affidavit of Support or any Petition for Alien Relatives. This means that you will no longer be in charge of certain responsibilities regarding supporting your spouse financially.
If you are currently in the process of a legal separation or divorce, it is wise to find an Attorney that can help you with your process. If you need assistance with that, feel free to contact us. We will be glad to help you and will make sure that you receive the best and most personalized consultation available from anywhere in the world.
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