What Happens If You Divorce an Immigrant

Updated January 24, 2024
10 min read
What Happens If You Divorce an Immigrant

The United States has long been a destination for immigrants, and marriage is one of the ways that an immigrant may secure permanent residency or even citizenship. As of 2019, immigrants made up 14% of the American population, amounting to 44.9 million people, according to the American Immigration Council. Another 12% of the population, or 38.3 million citizens, have at least one immigrant parent. 

Divorcing an Immigrant: Factors To Consider

However, matters become more complex in the event of a divorce. As a U.S. citizen or green card holder, if you're considering divorcing an immigrant spouse, it's vital to understand the potential implications on areas such as residency, affidavit of support, child support, and alimony and asset division.

The effects on residency after divorce

The immigrant's legal residency status after the divorce could be affected, and this largely depends on whether they are determined to be a 'conditional resident' or an 'immediate relative' under immigration laws. A conditional resident, usually someone whose marriage to a US citizen or green card holder is less than two years old, may jeopardize their status by divorce.

However, an immediate relative, such as a spouse, child under 21, or a parent of a US citizen, may experience different legal implications following a divorce. These differences highlight the importance of understanding the specific immigration category involved when considering divorce from an immigrant spouse.

Affidavit of support and divorce implications

Affidavit support, Form I-864, is a legal contract that binds you financially to an immigrant. Its terms usually persist even after a divorce. Under this form, the sponsor agrees to support the immigrant financially until they become a U.S. citizen, or they can be credited with 40 quarters of work, typically ten years.

Thus, even after you divorce immigrant, the sponsor may still have ongoing financial obligations towards the immigrant spouse, emphasizing the importance of considering the long-term implications of this agreement before signing.

Impact of divorce on child support

Child support claims remain a critical factor in any divorce settlement, and the legal implications of a divorce do not exempt any spouse from child support responsibilities.

In some situations, a power of attorney for a child may be necessary, which grants one parent the exclusive right to make decisions regarding the child's welfare. This legal document can be essential if one parent, such as the immigrant spouse in this context, has to leave the U.S due to changes in their immigration status post-divorce. 

Lastly, irrespective of the circumstances, the child's best interests should always be prioritized in any divorce proceeding, ensuring their right to fair support and representation.

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Alimony and asset division in immigrant divorces

Issues about alimony and the division of assets also come into play; laws governing these issues can originate from the couple's country of residence. It's crucial to understand that divorce legislations vary widely among different countries. While your state courts apply local laws, international laws could impact the division of assets, mainly if some assets are located abroad.

Hence, it is vital to have a comprehensive understanding of local and international laws or engage legal experts specializing in international divorce cases to ensure a fair and equitable distribution of shared assets.

How Divorce Affects Immigration Status

The impact of a divorce on an immigrant's legal status varies. If the immigrant's status is temporary or conditional, they may lose residency unless they file a fresh application or a waiver.

If the immigrant's status is a permanent resident, the divorce will increase the time frame required to obtain naturalization as a citizen. If the immigrant is already a US citizen, divorce wouldn't affect their immigration status.

Divorcing an Illegal Immigrant

Divorcing an illegal immigrant can lead to complicated legal and personal situations. It's essential to be aware of the following points:

  • Potential deportation: If the immigrant is undocumented, he or she faces a risk of deportation unless he or she promptly files for legal residency.

      • Right to alimony: The immigrant spouse may still be entitled to alimony or spousal support, depending on the laws of the state of residence.
      • Child support entitlements: If there are children from the marriage, the immigrant spouse will still have the legal right to claim child support. This right persists irrespective of their legal immigration status.
  • Legal support: The undocumented immigrant must secure legal representation to navigate the intricate immigration and family laws.

Remember, the exact legal rights and potential ramifications greatly depend on the specific circumstances of each case and the laws of the jurisdiction where the divorce is being filed.

Post-Divorce Immigration Applications

Following a divorce, immigration applications typically remain unaffected if the marriage was entered in good faith. However, the landscape changes dramatically if the marriage is discovered fraudulent or any illegal activity is detected. In such cases, penalties could be levied, and immigration applications could face denial, complicating legal status and potentially leading to deportation.

Adequate legal counsel is essential in these situations to ensure all regulations have been properly adhered to and that the immigrant’s rights are fully protected.

Conclusion

Navigating a divorce with an immigrant spouse can be a complex process that affects many aspects of both parties' lives. Engaging the services of a skilled family and immigration lawyer can be invaluable in guiding you through the process and understanding the potential ramifications.

Article by
Kateryna Adkham
Lawrina

Kateryna Adkham is a highly skilled and experienced content specialist at Lawrina. With her expertise and knowledge in content creation, Kateryna plays a crucial role in developing high-quality and engaging content for Lawrina.

Kateryna is responsible for various tasks such as researching, writing, editing, and proofreading content to ensure its accuracy, clarity, and effectiveness.