Being married to a citizen, by itself, does not inevitably confer legal standing on an immigrant. However, a valid marriage —which is not for the purpose of getting your green card— can provide an opportunity for some legal standing in some circumstances.
As we all know, divorce comes with many consequences, but this is particularly critical for immigrant spouses. Immigrants from any part of the world have virtually the same legal rights as citizens in the U.S– at least with regard to marriage and divorce.
Divorcing a foregin spouse is almost the same process as divorcing a citizen. Immigration and divorce, however, can be a tough play. The concern majorly is if your spouse got their citizenship or green card through marriage, if your spouse is a U.S citizen through marriage, they have some serious explanations to do.
But before we proceed into the divorcing an immigrant, here are some keywords we have to discuss.
Nonimmigrant: This is someone in a country for a limited period of time and for a specific purpose, such as tourism, work or study.
Lawful permanent resident (LPR): This is a non-citizen who has been given the permission to live and work in your country on a permanent basis. Proof of LPR status is known as a “green card.” Kindly note that an eligible LPR may apply to become a citizen.
Conditional resident: This is a person who has been issued a green card for just a period of two years based on marriage, who must meet certain conditions before they become a permanent resident.
Undocumented immigrant: This is someone who entered the country illegally (“without inspection or certification”) or has stayed beyond an authorized date (a non-immigrant can turn an undocumented immigrant if he stays beyond the specified amount of time).
The manner of entry is an important distinction because most immigrants who entered without inspection are barred from becoming lawful permanent residents or even conditional residents even through marriage to a citizen unless they are eligible to receive a hardship waiver.
Is divorcing an immigrant difficult?
If you are wondering how to divorce an immigrant spouse, know that for an immigrant spouse, the separation law of the nation leaves your spouse with exceptionally constrained alternatives to seek after a perpetual home. Your immigrant spouse who needs to end up a perpetual inhabitant must seek after what is called a “waiver.”
The justification for the waiver are exceptionally tight and incorporate demonstrating that the marriage was gone into in love and not for a green card, that extraordinary hardship would exist if the appeal to was not true, or that the settler life partner was battered by you.
Normal proof used to demonstrate that the marriage was genuine incorporates that the couple had a child together, went to marriage mentoring, or possessed a joint property.
What happens if you divorce an immigrant?
There has been a recent increase in divorce rates among Americans, with the average person divorcing around twice during their lifetime.
Divorce rates have been on the rise for a number of reasons, but one contributing factor is that more and people are getting married later in life and therefore have a greater chance of having gone through a divorce before tying the knot.
However, marriage between immigrants and citizens is a relatively new phenomenon in the United States, so the number of people getting divorced after an immigration status change could be minimal – or it could be growing.
According to the Pew Research Center, there are approximately 11 million undocumented immigrants living in the United States. These individuals have often been separated from their spouses who remained in their native countries as they entered the U.S. illegally in search of a better life.
If these people go through the difficult process of obtaining a green card, it is likely that they will eventually marry an American citizen and have children born in the U.S.
However, this also means that the couple are now faced with the possibility of being deported if they try to divorce and go back to their native country.
Despite this obstacle, it is not uncommon for immigrant couples to divorce even though they run the risk of being deported. In fact, studies have shown that immigration has only a small effect on overall divorce rates in the U.S.
While it may be discouraging for immigrants going through a divorce to see so many other couples struggling in unhappy marriages, it is possible to find happiness after a marriage has ended.
Residence status affects child custody decisions
Wondering what happens if i divorce my foreign wife or husband? You, the citizen spouse, may try to use the immigrant’s undocumented status as a lever in a custody determination. State custody laws generally include the immigration status of either parent or children as a factor to be considered in determining a child’s custody.
Also, family court judges in custody battles between a U.S. citizen and undocumented immigrant may have difficulty applying the “best interest of the child” policy when the undocumented parent is under a potential threat of removal (this will result in the citizen gaining the custody of the child, no matter what).
Winning child custody requires doing the opposite of what you expect. You are going through one of the hardest things you could ever face. Know these tips:
How divorce affects the immigrant spouse
If you are thinking how to divorce a foreign spouse, know the different scenarios of divorcing an immigrant spouse:
If your partner is a permanent resident
If your spouse is a lawful permanent resident (LPR), their days of worrying are over. Most immigrants who have already been approved for permanent residency in the country (but not naturalization) need not worry until when they actually apply to become legal residents of that country.
However, there are different residency periods which must apply before they may request naturalization.
If a permanent resident is married to a U.S citizen, the usual three-year period policy applies; if not married to a U.S. citizen, the usual five-year period policy still applies.
If you sponsored your partner
If you are a U.S. citizen that sponsored your spouse’s immigration application and who is going through divorce proceedings, you should take quick actions to avoid continued financial responsibility for your spouse.
You should start by withdrawing sponsorship in any court of law near you, also you should process the withdrawal of the previously filed affidavit of support.
You should also take note that financial responsibility continues unless your spouse leaves your country.
If you accuse your partner of marrying for getting a green card
Notwithstanding the punishments of the divorce procedures sketched out above, the allegations and verification engaged with a request of for divorce can influence migration procedures.
For instance, if the U.S. inhabitant guarantees that the outsider life partner went into the marriage falsely to pick up his “green card”, this will affect movement procedures at any stage.
In like manner, if a court discovers that the immigrant spouse was to blame in the failed marriage, perhaps through infidelity, battering, the absence of help, it could be lethal in migration procedures.
Basically, you should re-think about the divorce because you’re going to be costing an immigrant more than a marriage. You will be costing them their residency in your country.
Understanding how to divorce an immigrant spouse
If you are an immigrant living in the United States, your spouse may one day ask for a divorce. Wondering how to divorce an immigrant spouse?
Before your spouse can file for a divorce in the United States, they must first accumulate five years as a permanent resident of the United States.
Only then will your spouse be eligible to file for a divorce in the United States. Therefore, if you divorce your spouse while they are a permanent resident, it will still be considered a “foreign divorce.”
This means that if your spouse eventually becomes a U.S. citizen and decides to remarry, their new spouse will not be allowed to obtain a green card on the basis of your marriage. Instead, your spouse’s new spouse will need to meet the requirements for a “second marriage” to the United States in order to obtain a green card.
Si, if you are thinking about how to divorce an immigrant spouse, it is important for anyone going through a divorce to remember that the process can be extremely difficult and that it may take some time to come to terms with the situation.
Remember that it is not necessarily uncommon for couples to end up divorced even if one of them becomes a U.S. citizen and the other does not.
Keep in mind that any decision regarding the future of your relationship should be yours to make without pressure from anyone else.
If you feel disconnected or frustrated about the state of your marriage but want to avoid separation and/or divorce, the marriage.com course meant for married couples is an excellent resource to help you overcome the most challenging aspects of being married.
Rachael Pace is a noted relationship writer associated with Marriage.com. She provides inspiration, support, and empowerment in the form of motivational articles and essays. Rachael enjoys studying the evolution of loving partnerships and is passionate about writing on them. She believes that everyone should make room for love in their lives and encourages couples to work on overcoming their challenges together.