How Can A Divorce Affect My Immigration Status?

How Can A Divorce Affect My Immigration Status?

By: M. Scott Gordon

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.

Default Divorce in the Chicago area

Default Divorce in the Chicago area

By M. Scott Gordon

 When a marriage starts “going downhill”, a spouse can decide to leave the marriage without seeking a divorce, separation, or an annulment. But if one spouse proceeds to file for divorce without knowing where the other spouse is to be found, questions may arise as to whether or not the divorce can proceed. Generally though, if one spouse wants the marriage to end, and the other one is absent, a judge may grant the former a default divorce where certain procedures are followed.

Divorce by Default

After a party files for Divorce in Chicago or the surrounding counties, the divorce paperwork has to be served upon the other spouse. This basically means the other spouse has to receive the paperwork “in hand” in order to have notice of the case and appropriate “service of process”.  There are several ways that service may be achieved. Once the paperwork has been served, the party that is served has 30 days to respond and file an appearance informing the court that he or she will be participating in the proceedings.  However, a spouse may not be able to locate their partner and serve the paperwork.  In that case, the filing spouse may ask the court to grant the divorce by default.  How is that achieved?

llinois law authorizes judges to grant divorces by default in some cases even when one spouse has not been served with notice of the proceedings. This is called granting a default judgment for dissolution of marriage. When a judge considers granting a default judgment, he has to listen to the testimony of the filing spouse, and many times rely on that testimony alone, when granting the divorce. Because granting a default judgment under these conditions can seem unfair to the other spouse, the law requires the judge to first make sure that every effort has been made to give the absent spouse notice of the case. The judge can even order additional efforts to be made to provide notice to the spouse.  However, if the Court is satisfied that diligent efforts to locate the other spouse have been made and were unsuccessful, then service of the divorce upon other spouse may be allowed by “publication”.

Another situation in which a judge can grant a default judgment of divorce is if one spouse refuses to participate in the divorce after having appeared before the judge.

Publication

When a spouse cannot be found to be served, the filing spouse can ask the court to allow them to serve the absent spouse by publication. This means that the notice of the divorce is published in a newspaper for a period of time. If there is no response, the filing spouse can ask the court to grant a default judgment. The notice has to be published for three consecutive weeks in a newspaper in your county.  Your attorney can tell you which newspaper would be acceptable for this kind of service.

Default Judgments Are Legally Binding but Can Be Contested

 Though you will be legally divorced after a default judgment is granted, default judgments of divorce do not address certain matters, such as alimony or spousal support.  Why?  Because the Court needs “personal jurisdiction” to order certain things from the other spouse, and the court does not obtain that personal jurisdiction in a divorce through publication.  In addition, if the absent spouse later shows up and can prove that there was never an effort to properly serve them, they may be able to get the default judgment vacated and reversed.

Contact a Chicago area Divorce Attorney

If you are going through a divorce in Chicago, Cook / Lake or Du Page Counties and your spouse is not participating in the divorce, contact the Chicago divorce attorneys at M. Scott Gordon & Associates, to learn more about default judgments in divorces.