Immigration and Divorce : Overview23 Apr 2010
When there are marital difficulties, legal questions always arise; and the impact a separation or divorce might have on one’s immigration can be dire. Many of the questions that come to us at the Murthy Law Firm relate to immigration status, since that status is often dependent upon the marital relationship. Others are purely matters of family or domestic relations law that need to be discussed with an attorney practicing in that area. One frequent point of confusion for foreign nationals is a couple’s eligibility for divorce and related legal remedies within the United States, even if the marriage took place abroad.
State Residency Requirements Vary for Divorce
The requirements for divorce are a matter of state law. Each state sets its own standards and legal requirements. However, eligibility to file for and obtain a divorce in a particular state depends upon various residency requirements within that state. It does not require that the marriage was entered into in the particular state, or even within the United States. Thus, although married in another country, a couple may obtain a divorce in the U.S., if they meet the legal requirements of their state of residence. The American Bar Association (ABA) has compiled the state residency requirements in a chart available on their website. Of course, this is not a substitute for case-specific legal advice from a reputable and qualified domestic relations attorney in one’s state. It is simply helpful information that may be a useful starting point for understanding the framework.
Safer to Work with Domestic Relations Lawyer in State
Many foreign nationals are completely unfamiliar with U.S. domestic relations or family law. They often feel lost when they face the prospect of an unhappy or failing marriage. They may assume that they lack any rights, particularly if they are or were the dependent spouse in the immigration context. They are often scared, and feel trapped in an unhappy or possibly an abusive relationship. We at the Murthy Law Firm sometimes run across instances of incorrect assumptions of power and control as well. Some spouses think that they have a greater level of control, if they were the primary in the immigration context. While it is vital to be mindful of the immigration consequences of the dissolution of a marriage, one should not assume that it is tied to legal or financial rights, power, or responsibilities in the domestic relations context.
When in doubt, always seek advice from a domestic relations attorney, as well as an immigration attorney. The domestic relations attorney can clarify one’s rights to marital assets, support, custody and visitation with children, and related concerns. They can provide useful guidance as to how best to protect one’s interest in such a difficult situation. Immigration attorneys can advise an individual regarding how the marital problems and potential dissolution will impact immigration status for the parties in the divorce.
Immigration Overlap : Non-Support of Dependent Spouse
There is a great deal of overlap between marital dissolution and immigration status for dependents. This broad topic is beyond the scope of this article. Individuals in dependent immigration status usually realize quickly that a marital termination will have consequences on their status. What is often overlooked is the issue of non-support. Angry spouses sometimes attempt to send the other spouse out of the country. They often ask how they can force them to leave. Sometimes, spouses are tricked into traveling abroad, signing one-sided separation agreements, or are left stranded without documents. Individuals who behave in this manner generally do not realize that non-support of their dependents is relevant to their own immigration aspirations in the context of naturalization to U.S. citizenship. Those who wish to naturalize to U.S. citizenship must demonstrate good moral character. Good moral character includes supporting one’s dependents. Abandoning one’s spouse and/or children does not reflect well on moral character and can result in the denial of the application for U.S. citizenship.
Both Parents Can Flag a Child’s Record to U.S. Passport Office
Many foreign nationals have children who were born in the United States. Thus, these children are U.S. citizens. Mistrust between the parents often creates fear that the children will be taken outside of the United States when there is discord in the marriage. For this problem to be avoided, it generally is necessary for both parents to be involved with the child’s U.S. passport application. As a further precaution, parents can flag the records of their children under the Children’s Passport Issuance Alert Program (CPIAP).
Advice from Home Country of Validity of U.S. Divorce
There is an additional layer of complexity for foreign nationals considering marital dissolution. They must also seek advice in their home countries as to the recognition of any U.S. divorce. They need to determine if the divorce itself, as well as the financial and custody terms, will be recognized. They need to assess their potential exposure to a separate divorce, support, and/or custody case filing within their respective home countries. They may need to determine how to obtain recognition and, if needed, enforcement of the provisions abroad. If there are foreign assets at issue, this may become a complex matter, necessitating advice from attorneys in both countries.
Marital problems are distressing no matter the context. It can become even more difficult, when a foreign national faces such a situation with no knowledge of the laws and options in the United States. We are here to guide MurthyDotCom and MurthyBulletin readers when the difficulty of separation or divorce arises and with the potential immigration aspects of marital dissolution. We at the Murthy Law Firm remind our readers that they have options for protecting their personal interests from within the United States, even if they were married abroad.