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Specialty tag(s): Child Custody, Pre-Divorce Guidance, Divorce

Unraveling The Complexities: Immigration, Divorce, and Custody In Texas

Mona Hosseiny-Tovar | February 28, 2024

Young mom sitting in an office with her toddler

This article is tailored for individuals facing the daunting challenge of untangling their lives within the realms of both family law and immigration regulations. The intersection of divorce proceedings and immigration status presents a unique set of complications and considerations, from custody issues to green card applications and even the financial obligations tied to affidavits of support.

My aim is to shed light on the critical issues at play, provide essential insights, and offer guidance on approaching these challenges with strategic foresight. Whether you are grappling with how your immigration status might affect your divorce case, contemplating divorce with a pending green card application, or concerned about the implications of an affidavit of support post-divorce, this post is designed to answer key questions regarding the complexities of these intertwined legal arenas.

How Can Your Immigration Status Affect Your Divorce Case? If You Are Deported, Can You Lose Custody Of Your Children?

Your immigration status could be fragile, in the process, or undocumented, and you could be in family court fighting custody of your children.  Depending on the judge, in family court, your immigration status could weigh into the decisions of the court to establish custody of the children and determine parental rights of each party.  Sometimes, the parent who has legal status in the US could be granted more rights of the child and protections against the international parent from removing the child from the US.  If your immigration status is fragile, conditional, or undocumented, you should consult with an experienced family law and immigration attorney to determine whether your status will impact your custody and/or divorce case. 

Can You Divorce A Spouse Who Has A Green Card Application Still In Processing?

Most green card holders or permanent residents who applied through their US citizen spouse will be granted a conditional 2-year green card at the onset.  And once the 2-year mark approaches, they must file an application with USCIS that removes those conditions and grants them a 10-year standard green card.  The problem is, within the first 2 years of marriage, many couples will decide to call it quits, and will hesitate filing for divorce because of the fear of losing that green card. Where parties decide to split after that conditional 2-year green card is received, they cannot let a divorce or separation prevent them from filing the necessary paperwork with USCIS to remove the 2-year conditions. Parties do not have to remain in a litigious and conflicting relationship just because their partner’s application to remove the conditions (Form I-751) is still in processing or still pending with USCIS. This is especially true for parties who need to divorce because of the continued emotional or physical abuse by their partner, and usually a protective order or restraining order is needed to keep them safe.

In short, you can divorce your partner while the application is still under review, or even before the application to remove the conditions is filed, but USCIS requires full disclosure regarding the divorce and the reasons for the separation.  Even if the marital status changes after the application to remove conditions is sent out with the signatures of both parties, it is always best to update USCIS with a change in marital status and notify them that you have since separated from your partner.  USCIS requires a certified copy of the divorce decree, hence, it is very important to work with a lawyer knowledgeable and experienced in immigration and family law to assist with submitting the correct information and documents in order to ensure the I-751 application is approved and the 2-year conditions are still removed despite the divorce.

Another aspect to keep in mind when divorce happens between a US citizen and a foreign spouse is the affidavit of support and the legal implications of signing a document filed with the federal government that binds the US citizen petitioner to be financially responsible for their alien spouse.  Divorce does not absolve a US citizen petitioner’s financial responsibilities to the alien spouse as the affidavit of support (Form I-864) mandates, and this financial obligation only ends once the alien spouse or ex-spouse becomes a US citizen themselves.  

The Role Of Legal Support In Immigration And Divorce

Navigating the complexities of immigration and divorce in Texas requires careful consideration and planning. Through this article, we’ve explored the significant impact that immigration status can have on divorce and custody disputes, as well as the specific challenges faced when divorcing a pending green card application.

Whether you’re confronting custody issues as an undocumented or conditional resident or managing the nuances of a divorce amidst the green card application process, it’s essential to grasp the legal intricacies involved. We strongly advocate for the engagement of experienced family law and immigration attorneys, who can offer the specialized guidance needed to protect your interests and successfully navigate the legal hurdles of your unique situation.

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