Both Me and My Spouse Are in the U.S. on Visas, Can We Get a Divorce Here?

Many people travel to the United States on visas every year. These are individuals who may plan to stay in the United States for a certain amount of time, such as when they are finished traveling or attending school, or they may be individuals who eventually have a plan to immigrate permanently to the United States. While they are in the country, they may decide to change their marital status.

Mechanics of Divorce

As long as a marriage is lawful in its country of origin, individuals can usually get divorced in another country in a similar manner to their home country. However, they may have to meet certain criteria that is required of all individuals in the country. Additionally, there may be collateral consequences of the divorce. Filing for divorce in the United States subjects the person filing the case to the law within the state where the person resides.
 

Residency Status

Many countries like the United States have a residency requirement. This means that at least one of the spouses must have resided in the country and county where applicable for a certain amount of time as declared by law. Residence requirements are different for different countries, states and counties.
 

Immigration Status

If a couple divorces while immigrants, the immigration status of one or both spouses may change. For example, if a spouse is on a work visa, his or her spouse may lose eligibility to remain in the country after divorce. This is because his or her own immigration status is dependent on the other spouse. The spouse would have to qualify for an immigration status in his or her own right in order to remain lawfully in the country. When the divorce is finalized, it is no longer considered valid for immigration purposes.

How a divorce impacts a person’s immigration status depends on the person’s current status of immigration and type of immigration benefit. If an immigrant has received his or her green card already based on marriage and he or she has had the green card for less than five years and has been married to a citizen of the United States for less than three years, the immigration cannot petition for citizenship until he or she has the card for at least five years. If the spouse is in the country on conditional residence, the conditions cannot be removed and the spouse cannot obtain a green card based on the marriage. This would be after the spouses have attended a green card interview and the immigrant spouse is approved for conditional residence. In some situations, a spouse can file a waiver of termination in order to try to keep their residence. If the spouse already has permanent resident status, this status is not lost if he or she is divorced.

If a spouse petitions for a visa for his or her spouse but then divorces the spouse, the immigrant spouse cannot take further actions to acquire immigration based on this family relationship.
 

Child Custody Issues

Child custody issues may be implicated when the spouses have children. Generally, the parents may be able to make their own decisions regarding child custody and have this agreement drawn up and made part of the divorce settlement.
 

Treaties

Treaties can also impact how a divorce in another country is treated. Many countries have treaties that will not allow a parent to leave the country with his or her child while a divorce is pending. When contacting a family law lawyer about a possible divorce, it is important to also discuss the possible immigration complications and if there are any relevant treaties that may impact the divorce, child custody or other factors involved in the divorce.
 

Registration

After a person moves from one country to another with a court order in effect, he or she is responsible for registering that court order in the new country. Registration will give the new country the ability to enforce the order.
 

Legal Assistance

Both family law and immigration matters are complicated with many complex issues involved. If spouses are in the process of immigrating to the United States but a divorce is on the horizon, it is important that they both understand the legal complications ahead. An immigration lawyer can review the facts of the case and analyze the situation based on the specific circumstances involved in the case. He or she can then make recommendations based on this information.

Provided by HG.org

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