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Immigration and Divorcing a Foreign Spouse

Written by Bruce Feinstein, Esq. on . Posted in Divorce Blog

Divorce and Immigration

Dealing with divorce from a foreign spouse, including ways spouses can protect themselves and their assets.

Many people marry spouses that are not U.S. citizens, whether it be for love, or – fraudulently – as a way for their spouse to gain permanent U.S. residency, also known as a green card. As stated in to a recent article by USA Today, “About 1 million foreign nationals gain legal status each year, and fully one-fourth of those are through marriage to an American citizen or someone who already is a lawful permanent resident, known as a green card holder. Of those, some estimate 5% to 15% may be fraudulent.”

Marriages involving a foreign spouse can fall apart just like marriages between U.S. citizens. But they bring with them a new set of issues that spouses need to consider. In this post we focus on clients and people who are going through divorce from a foreign spouse, including talking about on ways spouses can protect themselves and their assets.

One legal way for spouses to protect themselves is to get a prenuptial agreement prior to walking down the aisle. The prenuptial agreement works as a contract between two spouses that explains how assets will be divided in the event of divorce (or death). This document can prevent one spouse from gaining the majority of the other spouse’s property in a divorce; this is especially important if there is a large divide in wealth between them. While prenuptial agreements will not cover all divorce matters between a U.S. sponsor and his or her foreign spouse, they will help protect a U.S. spouse from various financial liabilities.

When it comes foreign marriages, an important difference between these marriages and those between U.S. citizens is time. Marriages that are less than two years old give the foreign spouse something called conditional permanent residence. This means that the foreign individual can stay in the U.S. with his or her spouse on a conditional green card. Once that marriage is two years old, officials from the U.S. Citizenship and Immigration Services review the state of the marriage. If they determine that both spouses are still together, the foreign spouse can then be given permanent U.S. status. Otherwise, that spouse has to leave the country.

This two-year grace period can cause stress on some marriages by forcing couples to stay together even if the marriage devolves. It also has long-term consequences for the couple. A U.S. sponsor must sign an affidavit of support, meaning that the sponsor is liable for various types of financial decisions made by the foreign spouse, and his or her children. This affidavit is valid for 10 years. One problem couples have when going through divorce with a foreign spouse is not knowing the full extend of their financial obligations. It’s important to review all the legal documentation before beginning a marriage to a foreign resident.

The liabilities in this affidavit include responsibility for the costs of a foreign national who uses government services like food stamps and (nonemergency) Medicaid. That spouse is not legally eligible for these benefits prior to becoming a U.S. resident, and the cost of repaying these debts can fall onto the sponsor.

U.S. spouses who are dealing with this dilemma can contact immigration officials to remove the foreign spouse if there is a valid reason to so do, such as proof of a marriage of convenience. But foreign spouses can counter the accusation and keep their legal status if they prove extreme hardship or confirm the marriage was performed “in good faith.” This situation can get complicated when children are involved; not only can it make showing extreme hardship easier, but it can also bring up custody issues if one spouse leaves the country.

Divorcing a foreign spouse in New York can become more emotionally and financially difficult for those involved. If there are issues of a marriage of convenience, or attempts to benefit from government services prior to citizenship, these can complicate the divorce process. Having a divorce attorney who is skilled in these issues can help a spouse navigate these issues during the divorce process.

Important tips on how to deal with your finances after a divorce.


If you are looking for an experienced divorce attorney in Queens, Contact the Law Offices of Bruce Feinstein, Esq. today for a Free Consultation.

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