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Immigration and Divorce

Immigration and Divorce

  • Updated

Hands with torn photograph of couple

When love doesn’t last forever and happilyever- after isn’t realized, the resulting divorce can be a complicated endeavor. But when one of the spouses is a foreign national, litigation can become even more delicate and sometimes problematic. “I think one of the biggest issues in a divorce between a U.S. citizen and a non-U.S. citizen is present when there are kids involved, and that’s the worry that the non-citizen parent will flee the country with the children of the parties,” says Kirk Stange, manager/member at Stange Law Firm. “In many instances when this happens, the citizen parent might not get them back. There are a lot of highly publicized cases out there. We’ve dealt with these kinds of cases and have worried that this might happen.”

On the citizen parent’s side, Stange points to the Hague Convention, an international treaty between most countries in Western Europe and North America that indicates a parent can be ordered back to the U.S. through the foreign country’s consulate. Stange says the Hague Convention determines which country is the proper forum for the custody dispute, and if the family had lived the majority of the time in the U.S., then the case should be litigated in the U.S. “When we have a client going through a divorce with a non-citizen, our first step is to check if the country is a member of the Hague Convention,” he notes. “If it’s not, we’ve got to move quickly to ensure the parent doesn’t flee. So at the time we file the divorce or the custody case, we immediately file a motion to get the passports. Otherwise, it can turn into a nightmare.”

Another concern for cases of this nature, according to Melissa Nolan, an immigration attorney at Paule, Camazine & Blumenthal, is that following the marriage and the application for permanent residency, the U.S. citizen needs to file an affidavit of support. This document is a binding contract between themselves and the U.S. Government, guaranteeing that they will support their spouse at a certain income level. The contract can be enforced by the government or by their spouse whether they divorce or not. “So it could be 10 years down the line after they’ve gotten divorced when the U.S. citizen could potentially be sued both by the government and by their former spouse for support based upon that affidavit of support, which was filed in connection with their immigration case,” Nolan indicates. “The purpose of it is to obtain immigration status for the non-U.S. citizen.”

Also, Nolan notes that if a couple divorces after a marriage lasting less than two years and before the non-citizen becomes a permanent resident, then the person’s permanent residency in the U.S. could be at risk. “If a green card has not been approved then that spouse could be deported,” she says. “But if the couple doesn’t divorce and after the spouse becomes a permanent resident, there’s an additional requirement that one year and nine months later, they file an application to prove they are still married and that they had a good faith marriage.”

Nolan explains that the Immigration and Nationality Act is the set of laws that governs immigration in the U.S. When a couple gets married and one spouse wants to sponsor the other one, the act explains what steps should be taken. When a couple gets divorced the act also outlines the possibilities for the non-citizen to remain in the U.S. “Just getting married does not provide any sort of status for the noncitizen,” she says. “There are a variety of applications that need to be filed and approved before the person gets any legal status. But getting married is a great step because it gives the non-citizen the option of being able to remain in the U.S. They just need to follow the very specific steps and procedures in order to actually become a permanent resident and receive status.”

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