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Introduction – An Illegal Immigrant Can Get a Divorce, and Be Divorced
An illegal immigrant looking for a divorce can get one. Similarly, a spouse can divorce an undocumented immigrant. U.S. family law allows individuals to file for divorce based on personal grounds, such as irreconcilable differences, even if they do not have legal immigration status. However, there can be challenges if the spouse is petitioning for their green card or if the immigrant is concerned about the impact of divorce on their immigration case. It is essential to seek legal advice to understand how divorce might affect immigration applications, especially if the divorce may complicate pending petitions or affect one’s ability to remain in the U.S. There are key considerations to keep in mind, especially when immigration status comes into play.
Divorce and Immigration Status: What to Consider
For an illegal immigrant looking for a divorce, the process can feel more complicated. Divorce can raise concerns about how your immigration status might be impacted. Understanding your rights and options is essential for making informed decisions and securing a stable future.
Can You File for Divorce If You’re Undocumented?
Absolutely! Your immigration status does not affect your ability to file for divorce in the United States. Divorce laws are governed by state law, not federal immigration law. As long as you meet your state’s residency requirements, you can file for divorce. For example:
- In New York, you must live in the state for at least two years before filing, or for one year if the marriage occurred in New York or the grounds for divorce happened there.
Family courts focus on resolving domestic issues—not your immigration status. However, consulting a family law attorney with experience in immigration matters is crucial to navigating the process effectively. Generally, Family Court judges are not interested in immigration status and don’t report people to immigration.
In fact, many illegal immigrants looking for a divorce regularly use the New York Court system. However, as we discuss below, you should always have your immigration attorney in contact with your divorce attorney.
How Does Divorce Impact Immigration Status?
Whether you are an illegal immigrant looking for a divorce, or legally in this country on a visa, your immigration status could be affected by divorce, especially if your residency depends on your marriage. For instance:
- If you have a conditional green card based on marriage, a divorce could complicate your path to permanent residency.
- You may need to apply for a waiver to show that your marriage was genuine, even if it ended in divorce.
An experienced immigration lawyer can guide you through these complexities to help protect your status. Keep in mind, that even the best divorce attorneys generally don’t know immigration law. So, it’s important for your immigration and divorce lawyers to work together.
Can an Undocumented Immigrant Get Spousal or Child Support?
Yes! U.S. family courts prioritize fairness and the best interests of children, regardless of immigration status. As an undocumented immigrant, you can request:
- Child custody: Decisions are based on the child’s best interests, not the parents’ immigration status.
- Child support: Both parents are legally responsible for supporting their children financially.
- Spousal support (alimony): If you meet your state’s requirements, you can petition for spousal maintenance.
Will Going to Court Lead to Deportation?
The number one fear for an illegal immigrant looking for a divorce, is that they will get deported. However, in most cases, attending family court for divorce, custody, or support hearings will not result in deportation. Family courts handle domestic matters and typically do not involve immigration enforcement agencies like ICE. However, it’s wise to consult with a lawyer to prepare and minimize any potential risks.
Protecting Yourself Legally During Divorce
To safeguard your rights during a divorce:
- Work with both a family law attorney and an immigration lawyer.
- Ensure you have the necessary documents like financial records and immigration paperwork.
- Explore options to secure your immigration status, such as self-petitioning or applying for independent residency.
Why Choose Blodnick, Fazio & Clark for Immigration and Divorce?
At Blodnick, Fazio & Clark, we specialize in immigration law, helping undocumented immigrants navigate the divorce process. Whether you’re worried about your immigration status or need assistance securing child or spousal support, we’re here to help.
Contact Us:
- Humza W. Arshad, Esq.
- Phone: (631) 669-6300
- Email: HArshad@bfclaws.com