Divorce can be a gut-wrenching experience. Aside from the emotional pain you are going through, you must also deal with the complexities and complications that come with the legalities of divorce. Issues such as child support, child custody, alimony, equitable distribution, and even legal fees can make a divorce more complex and painful than it needs to be. When divorcing a woman you have married from a foreign country, the complications are quite often more numerous; the lucky thing for you is that the complications most often fall in the lap of the immigrant. On top of the issues mentioned above, divorce with an immigrant will often involve in-depth immigration and financial issues as well. Many of the specifics will depend on your own unique situation.
While the divorce process will be conducted according to the laws of the state in which you apply for the divorce, the actual immigration process will be handled by the United States Citizenship and Immigration Services Office. When dealing with this situation, you should consult both a divorce attorney and an immigration attorney. This will give you the clearest approach to the situation, with perspectives and opinions from all sides.
Many major differences with immigrant divorce arise when the U.S. spouse has decided to sponsor the foreign spouse's immigration application. This is quite common, obviously, since the U.S. spouse wants their foreign partner to officially and legally reside with them in the United States. However, the sponsorship of their immigration application can become a complicated area during a divorce process.
Conditional Permanent Resident Status
One of the most important aspects to understand is the Conditional Permanent Resident Status and its specific rules and regulations. If you are planning to get a divorce with a foreign spouse or are already involved in one, you should specifically research the conditional permanent resident status specifications. Simply put, there is a two year "grace period" in marriages involving a U.S. spouse and a foreign spouse. If they are married for under two years, the foreign spouse will only receive the conditional permanent resident status (this is not full U.S. citizenship). If the marriage is going well and is approaching its two-year anniversary, they can file a joint petition with the Immigration and Naturalization Services (INS). Once they have been married for two years and they file a joint petition, the foreign spouse can receive unconditional permanent residence in the United States.
The two-year "trial" period is very important within the divorce process, particularly for the foreign spouse. If the divorce is finalized before the marriage has existed for two years, the residency status of the foreign spouse will be terminated and no unconditional residency will be provided. Sometimes the foreign spouse, at this point, could be at risk of being deported. Many immigrants in this situation will apply for a termination waiver. This waiver basically allows the foreign spouse to remain in the United States for one reason or another. The basic grounds for the waiver are:
· Good Faith Marriage: There is proof that the marriage was a legitimate relationship and not some kind of fraud. The proof of a "good faith" marriage would include children conceived within the marriage and/or property they owned as a couple.
· Abuse of the foreign spouse by the U.S. spouse.
· Impending hardships if the foreign spouse is deported to their previous country of residence
A key part of acquiring the residency termination waiver is having the U.S. spouse present and willing to help. It basically states that they entered the marriage in good faith, not to acquire U.S. residency or citizenship. The fact that the waiver needs to be signed jointly, however, can become a problem for many foreign divorcees. For example, if a foreign female requests to divorce a U.S. male citizen, that male citizen may not feel any obligation to help the foreign female remain in the U.S. Sometimes, the divorced U.S. citizen will even attempt to have the immigrant deported because of the emotional anguish and frustration. In a case where the U.S. citizen is unwilling to help with the waiver, the immigrant still has the ability to apply for the waiver as long as she can prove she entered the marriage in good faith and was not the reason the joint waiver couldn't be filed correctly. Proving this can be a challenge, especially with an angry ex-spouse, but it can lead the immigrant to a continued conditional permanent resident status.
If the divorce is finalized after the two-year conditional period and the foreign spouse has already received full citizenship, that citizenship cannot be taken away because of the divorce. Most often, the residency status of the foreign spouse will not be affected by the divorce if she has already received unconditional permanent residency status. Acquiring full U.S. citizenship, however, can be affected by the divorce, even after a marriage has lasted two years. Generally, a five-year residency is required to acquire full U.S. citizenship. However, if a conditionally permanent resident is married to a U.S. citizen, the requirement drops to three years. Once the foreign spouse has lived in the U.S. for three years, she can apply for official U.S. citizenship. If the foreign spouse has been awarded unconditional permanent residency status, is married to a U.S. citizen, but gets a divorce before living in the United States for three years, she must continue to reside in the U.S. for the full five years before being eligible for U.S. citizenship.
Similar laws and regulations of U.S. residency are applied to the children of immigrants as well. If a foreign spouse with two children marries a U.S. citizen, not only does the spouse receive conditional permanent resident status, but her children as well. If they divorce before the two-year conditional period has passed, the children lose their resident status as well as the foreign spouse. After the marriage has lasted beyond the two-year period and the foreign spouse receives unconditional permanent residency status, the children are given that status as well. The children's resident status cannot be affected if they have acquired it some other way than through the parent's marriage.
Affidavit of Support
The word "prenup" comes with a whole new stigma these days. With the rise of capitalism and the desire for possessions, prenuptial agreements have become much more common in modern society. People often joke with newlyweds and ask with a smirk, "did you get him to sign a prenup?"
Very similar to a prenuptial agreement is an affidavit of support. When you enter marriage with a foreign spouse, you will be required to sign an affidavit of support unless your spouse can acquire residency another way. To obtain an immigrant VISA or an adjustment of status, a foreign person must acquire an affidavit of support.
Simply put, the affidavit of support states that the incoming foreign resident will be financially provided for by the U.S. sponsor. This affidavit basically ensures that the immigrant will be sheltered, fed, and provided for to an acceptable extent. More specifically, the sponsor must provide at least 125% of what the Federal Poverty Guidelines deems necessary for that household size. If the sponsor is currently serving in the armed forces, only 100% of the necessary support needs to be provided.
The most complicated aspect of the affidavit, and usually the most frustrating to U.S. citizens, is that it does not terminate with a divorce. In other words, you still have to provide for your foreign spouse even after a divorce. Much like a prenuptial agreement, you will need to pay a specified amount on a scheduled basis. The amount you are required to pay will depend on the employment and financial situation of your foreign ex-spouse.
There are, however, certain grounds for termination of the affidavit of support. Those include:
· The immigrant has worked 40 qualifying quarters (approximately 10 years), according to the standards put in place by the Social Security Act
· The immigrant "naturalizes." This is the process by which the immigrant can gain full U.S. citizenship by proving continuous U.S. residency, thorough English and Civics knowledge, as well as an attachment to the Constitution. A test is administered for immigrant naturalization.
· The immigrant dies or is not longer a U.S. resident.
If none of these grounds for termination are found, the affidavit of support will stand, requiring the sponsor to continue with financial support. This requirement will stand until one of the grounds for termination is met. If support is not provided by the sponsor on time and in full, the immigrant has the right to sue.
Furthermore, if an immigrant receives any kind of "means-tested public benefits" from an agency (including, but not limited to, Social Security Income, Food Stamps, or Medicaid), the sponsor must pay that agency for the costs of the benefits. Essentially, the sponsor should have been paying for these benefits all along, so they receive the responsibility for payment.
A Proper Defense
Progressing through the divorce process involving a foreign spouse can be confusing and stressful. It includes the common details of any divorce, but also an added section of issues and complexities that can seriously affect the lives of both parties involved. Unfortunately, many international marriages that end in divorce do so aggressively and with a complete dissolution of any relationship. Whether the decision was made in unison or by a single spouse, there is a possibility that frustration and anger will cause harsh, sometimes malicious decisions to be made. If you find yourself in an aggressive divorce with a foreign spouse, you should prepare to defend yourself from the worst.
First you should meet with both a divorce lawyer and an immigration lawyer. This will provide you with a clear idea of what is really happening, explained in words you can understand. Plus, your lawyers will be focused on their area of expertise instead of trying to review and compile every aspect of your case.
Some basic defenses to keep in mind will help you to build your overall plan, according to your foreign spouse's actions. You will obviously adjust your approach as your spouse's intentions become clear, but there are some basic issues that commonly arise within a divorce between a U.S. citizen and an immigrant.
Understanding and defending yourself against the affidavit of support is important when dealing with an aggressive foreign divorce. The document itself is actually quite confusing. Much of its ten pages involve instructions on filling out and filing the form and not the actual promise it guarantees. The writing style and word-choice, down to the lack of the word "contract," seems to be intentional hard to understand. This can work to your advantage. If you think you understand something and move forward, should you be blamed if you were misled? Absolutely not.
Even the actual payments and actions you will need to take are a bit vague. The affidavit of support states that the sponsor should be responsible for any "means-tested public benefits" given to the immigrant from any agencies. Therefore, the amount the sponsor is actually liable for is completely unclear. The affidavit can only be terminated under very specific circumstances and could remain intact for an undetermined amount of years. Since this is true, a sponsor could be responsible for massive medical expenses for someone who he doesn't even see anymore.
Beyond the fact that the document itself is confusing, it should be acknowledged that you entered the affidavit of support as a gift to your spouse. When you think about it, the sponsor technically receives nothing. You basically acknowledged that you will provide for this person out of your own pocket and will take responsibility for their residence in the United States. In a marriage situation, the signing of the affidavit of support is a sign of love. In a divorce with a foreign spouse, this sign of love can be quickly, and easily, turned into a contractual obligation that you may have never been aware of. It can pull at the selfishness of people who are already in a frustrating and often infuriating situation, sometimes moving them to press on the technicalities of the affidavit for the sake of money.
Another way to defend yourself is to point out the uneven nature of the deal between you, a single U.S. citizen, and the U.S. government. If you are in love with a woman who happens to live in another country, the government is essentially forcing you to sign the affidavit of support in order to maintain your happiness and lifestyle with her in America. The idea of choice is very limited here, so it doesn't make sense that a U.S. citizen should be locked into liability for the immigrant for an undetermined amount of time.
Finally, if you can prove that your foreign spouse was fraudulently entering the marriage with the sole purpose of acquiring U.S. residency, you will be able to utilize that fact throughout the divorce process. The existence of fraud from your foreign spouse will give you an advantage in most situations that arise during the divorce process.
International Child Custody Issues
With an international divorce, further complications arise when there are children involved. While some international marriages end with a pleasant parting of the spouses and a legitimate, fair custody situation established, many of them do not. On the contrary, these other instances can become destructive, life-changing events.
Unfortunately, international child abduction cases have become quite common. When the marriage between a U.S. citizen and an immigrant comes to an end, the divorce will be more complicated when children are added to the equation. Because many foreign spouses do not want to risk losing their child/children, they will simply flee the country. Without strict exit controls in the United States, anyone with a passport can leave the country. Therefore, it is shockingly simple for an angry spouse to abduct a child and run away.
Too often, the fleeing spouse is successful. Once hidden away in their destination country, they can acquire custody of the child/children and leave the "left-behind parent" alone and unaware of the situation. Not only does this horrible occurrence involve complex law and regulation, but the emotional pain and repercussions can be severe for both the child/children and the left-behind parent.
The children's lives will be disrupted in many ways. They will be taken quickly from their schools, their homes, and their friends. Suddenly, a parent who has been around every day to provide love and support has disappeared completely. The children may feel a sense of responsibility for what has happened to them, attempting to place blame on themselves because nothing else makes sense. The left-behind parent will feel many coinciding emotions, also feeling ripped away from someone who had been around each and every day. Maybe most importantly, both the children and the left-behind parent will feel a strong sense of abandonment and rejection that may never go away.
Preventative steps can be taken to avoid this sort of disaster. Although each U.S. state has its own laws and regulations regarding divorce, there are also nationally recognized laws about this subject that states have endorsed over time.
Similar to a run-of-the-mill domestic divorce, the custody of the children in an international divorce case will be decided once the specific situation has been analyzed. In the past, it was heavily debated whether or not relocating children would cause more harm than good. Eventually, it was concluded that each case is unique and should be analyzed accordingly to decide whether relocation would be advantageous. While this judgment process is going on, be conscious of a possible child abduction. If your children have been assigned passports, you should take cautionary action to secure their safety.
You custody decree can be a very important part of keeping your children safe from abduction. Somewhere within the decree, be sure to include that the children need your permission, or the court's permission, to leave the country for any reason. Next, contact the Child Passport Issuance Alert Program and add your children's names to the Passport Lookout System. This way, you will be quickly notified if passports have been issued to your children. However, this does not guarantee your ability to revoke a passport that has already been issued. Your child's information will be sent to all U.S. passport agencies and also to any U.S. embassies.
Whether you are planning to marry a foreign spouse or needing to divorce one, the planning process is essential. You should be aware of each and every way the situation will affect your life, both personally and financially. Foreign marriage involves unique laws, forms, and regulations that can cause problems in the future if they are not properly understood.
You may feel unsure, scared, or just angry about this divorce process. However, if you are unhappy and need to make a serious change in your life, don't let laws and technicalities keep you in a slump. Do the research, take your time, and make sure you understand every aspect of a situation before moving forward.