Even though we expect privacy in our love life, marriage, and home, the government does get involved. The government has laws about who we can and cannot marry, and the government gets involved in divorce as well, especially when divorcing a non-citizen. A judge can rule on child custody, child support, spousal support, and property division. These implications cause an extra concern for those divorces between an American citizen and a non-citizen.
This article gives you an overview of the marriage between family law and immigration law (for more information about divorce’s impact on immigration status specifically, read this article). There are mandatory processes for marrying a non-citizen. If both parties are living in the US, the non-citizen is likely on a work visa or visitor visa. A wedding ceremony can be held rather quickly. The non-citizen spouse will need to complete the adjustment of status process and will likely be able to transfer to green card status.
If the non-citizen spouse is outside of the US, he or she will need consular processing or green card processing. These processes will need to happen while that person is out of the country, so the marriage ceremony might be months away while the paperwork process is completed. The US government charges fees ($1000+/- ) for the administration of all the required documents. So, there are additional hurdles or requirements when marrying (and thus divorcing) a non-citizen, but a US citizen may certainly marry whomever he or she wishes (just can’t be to a person too young, incompetent, intoxicated, or too closely related).
Just to clarify, marrying an immigrant does not automatically make that person a US citizen. The marriage does give the immigrant conditional permanent resident status until the marriage is 2 years old. But, if there is a divorce before the 2 year mark, the non-citizen spouse can lose their status and face deportation. About 1 million foreign nationals gain legal status every year in the US and about 25% of those are a result of marriage. Immigration officials estimate that 5-15% of those marriages are based on fraud or a sham marriage. There are 45 million+ immigrants living in the US or about 14% of the US population. The burden of proof that the marriage is bona fide is on the immigrant spouse.
Another US government requirement is that the US citizen spouse must submit an I-864, an affidavit of support stating that the US citizen will support the non-citizen. The affidavit needs to show that the marriage’s standard of living will not fall below the national poverty level. The American government wants proof that there will be enough family/spousal support so that there will not be reliance on poverty assistance and welfare programs.
If the parties separate or divorce before their second anniversary, that divorce could impact the visa applications of any other family members/relatives that are being sponsored for entry into the US. And, of course the non-US citizen might need to return to his or her home country.
And, of course, the children of the couple are impacted. If custody of the children is in question and must be resolved in court, a judge must rule with the child’s best interests at the center of the decision. A judge can’t rule against a party just because of the parent’s citizenship status. Likewise, the property division decisions of a judge should not just focus on the parties’ citizenship status. A judge can rule on equitable distribution, i.e.. who gets which bank account, the house, the car, etc., regardless of the citizenship status of the spouses.
There are international legal agreements, recognized by the Hague Conference, that allow participating countries to recognize and enforce child support orders and collection efforts. An American judge can order a non-citizen to pay child support. Likewise, there are similar international contracts which allow foreign countries to recognize property division decisions. However, there are no international guidelines regarding child custody and visitation. Where and when to file for child custody and visitation can become an immediate, serious concern.
It is likely in these situations that a party may need the advice of a family law attorney and an immigration attorney. The issues and concerns can easily overlap and require legal counseling. As is said, “Two heads are better than one” – hopefully the divorce attorney and immigration attorney can help the family resolve their issues.
