Thursday, September 11, 2014

How Can A Divorce Affect My Immigration Status?



How Can A Divorce Affect My Immigration Status?


Generally, immigration status does not affect a Divorce. A couple can get Divorced in Chicago or the surrounding areas regardless of either spouse’s immigration status. The Illinois law applicable to divorce requires one of the divorcing spouses to reside or officially live in Illinois before filing for divorce. The law does not mention immigration status, however, the residency requirement could be a potential problem for an illegal immigrant spouse, unless they are somehow able to prove residence in Illinois.

On the other hand, divorce can affect immigration status. The effect of a divorce on immigration status depends initially on whether or not an immigrant has entered the U.S. legally or illegally.

Legal Immigrants

When an immigrant enters the country legally, there are different ways in which he or she can become a citizen or a permanent resident. If a spouse helps with the application for permanent residency, divorce can affect the application depending on how far the application has progressed at the time the couple divorces.

Immigrants who are granted conditional permanent residency through marriage have to apply jointly with their spouses for the conditions to be removed after a certain amount of time. For couples who are divorced, or where one spouse is a victim of domestic violence, a spouse can apply for a waiver to allow him or her to apply for the removal of conditions alone.

Note that if you signed an affidavit of support so your spouse could become a permanent resident or a U.S. citizen, you may still remain liable for her or his support after your divorce. The United States Customs and Immigration Service (USCIS) cautions that divorce does not end the obligation taken on by signing an affidavit of support. This means that after a divorce, a person who signs an affidavit can be compelled to provide support to their ex-spouse based on that affidavit.

Illegal Immigrants

 For a spouse that entered the country illegally, a divorce may indirectly affect immigration status. Sometimes the lack of a legal immigration status can be used as leverage by one spouse to gain an upper hand in divorce proceedings. A spouse may threaten that they will report the other spouse and have them deported unless they give up custody or the right to financial support.  These threats are not in the divorce court, but usually made by the “legal” spouse privately.  If such threats are made, you should inform your attorney.

When a couple is seeking a divorce in Chicago, Cook / Lake or Du Page Counties, they have to exchange financial disclosure information that includes income and debts that each spouse has in their name.  A spouse who is illegally in the country may also lack an official source of income with pay stubs and other means of assessing monthly income. This would make it difficult for a court to determine the appropriate amount to order in child support or spousal support, especially if the illegal immigrant spouse claims to be unemployed.  Note that a parent still has parental rights regardless of immigration status, and therefore would technically be able to apply for visitation and custody.

Contact a Chicago area Attorney

If you are going through a divorce in Chicago, Cook / Lake or Du Page Counties,  and want to better understand how it will affect you, contact the Chicago area divorce attorneys at M. Scott Gordon & Associates, and see how we can help and support you through the divorce proceedings.

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