If you are married to an illegal immigrant and a divorce is looming, you should know that your spouse has almost the same legal rights that any citizen would have in relation to marriage and divorce. However, your spouse’s status as an illegal immigrant can lead to some additional complications that should be taken into careful consideration.
Even the most straightforward divorce is a complex legal matter, and immigration concerns make things that much more challenging. Having an experienced Round Rock divorce attorney in your corner is always the best policy.
Divorcing an Illegal Immigrant
The State of Texas entitles all married people the right to divorce, regardless of whether or not they are in the country legally. As such, divorce laws in Texas do not distinguish between legal and illegal residents, and neither do the laws in other states.
Family courts in Texas do not inquire about the immigration status of divorcing parties, and they don’t alert Customs Enforcement. However, this policy does not mean that the spouse you’re divorcing can’t be deported during the divorce process.
Residency Requirements
Regardless of your spouse’s immigration status, it’s important to know that the State of Texas has residency requirements for divorce filings. To file for a divorce in Texas, you must have lived in the state for at least the six months prior, and you must have lived in the county you file in for at least the ninety days prior.
Conditional Permanent Residency
Each year, hundreds of thousands of foreign nationals marry citizens of the United States, putting them on the green card fast track. Federal immigration laws ensure that when a foreign-born person marries an American citizen, they immediately become family members and, as a result, are exempt from immigration statute limitations. However, when the marriage fails before two years have passed, it can lead to complications.
Before a marriage reaches the two-year mark, the immigrant spouse is granted condition-based residency status, which means this legal status can be terminated if it’s determined that the marriage was entered solely for immigration purposes. While this conditional status affords the immigrant spouse the same rights as other permanent residents in the country, the difference lies in the fact that the conditional permanent residency can be terminated.
After two years of marriage, the immigrant’s conditional status can be converted to permanent residency. If the resident is in the process of divorcing or has already divorced at the end of these two years, the residency status is lost, and he or she becomes eligible for deportation. Once the immigrant spouse is married for a full two years to a U.S. citizen and receives permanent residency, divorce cannot affect immigration status.
In other words, it’s complicated, and because protecting your financial and parental rights is critical, working closely with a trusted Round Rock divorce attorney with a wealth of experience ably handling complex cases involving immigration concerns is paramount.
Factors that Can Improve Your Soon-to-Be Ex’s Immigration Status
While divorce will leave your soon-to-be ex more vulnerable to deportation if your marriage didn’t last a full two years, there are factors that can improve his or her chances of beating deportation:
Meeting the residency requirements for divorce in Texas
Being in a good faith marriage – rather than in a marriage entered for immigration purposes – and remaining married for close to two years
Living together as spouses
Owning property together in the United States
Having a child together
Demonstrating that he or she would experience extreme hardship upon deportation
The Terms of Divorce
Regardless of whom you’re married to, a divorce means resolving the primary terms that apply, which is challenging enough when there are no complicating factors, such as immigration status.
The Division of Marital Property
The property and assets that you and your spouse acquire while you are married are viewed as marital property in the eyes of the law. This determination means that it belongs to both of you and must be divided between you fairly in the event of divorce. The fact that your spouse is an illegal immigrant will not affect how the court divides your marital assets, but the following factors will:
The contributions each of you made to the marriage, including housekeeping and childcare
The size of the marital estate
The size of each of your separate estates
Your and your spouse’s age and overall mental and physical health
Your and your spouse’s earning potential
The tax implications of the proposed property division
Any unique considerations that apply to any of the assets involved
Any other factors deemed relevant to your case by the court
Separate property refers to the assets that each of you brought into the marriage with you and that you were able to keep separate throughout. Any increase in the value of separate assets is considered marital.
Further, Texas courts begin with the presumption that all assets are marital, and as such, the spouse who claims an asset as separate is tasked with proving its separate nature. Finally, a blurring of the line between separate and marital property over the course of a marriage is more common than most couples think.
Child Custody Arrangements
Texas courts are always motivated by the best interests of the involved children, which generally means affording both parents generous visitation rights, better known as parenting time. The fact that your children’s other parent is an illegal immigrant will not affect the court’s determination on the matter of child custody arrangements.
However, if your divorcing spouse’s immigration status affects his or her ability to live up to certain parental responsibilities, it can affect the court’s ruling. Texas courts take all of the following kinds of factors into consideration when determining child custody arrangements:
The age and overall mental and physical health of each child
The overall mental and physical health of each parent
Each child’s needs, and each parent’s ability to effectively address them
Each parent’s preference on the matter
The preference of each child who is considered up to the task of sharing a reasonable preference
Each parent’s commitment to successful co-parenting
Each parent’s commitment to supporting a loving and ongoing relationship between the children and their other parent
How well the children have adjusted to their current home, school, and community, which is referred to as the status quo
Whether child abuse, child neglect, or domestic violence is a concern
Texas addresses child custody in terms of both legal custody and physical custody. Legal custody represents decision-making authority over primary parenting concerns like the following:
Health care
Education
Religious education
Extracurriculars
Parents can continue making these important decisions that guide their children’s upbringing together, or one parent can be assigned sole legal custody. Other options include one parent having the authority to break a tie or both parents dividing these decisions between them according to category.
For the kinds of decisions that must be made on a daily basis, the parent on the parenting time schedule at the time is responsible for doing so. If an emergency decision must be made, the parent who is most readily available will be called upon to make it.
If you share children with your divorcing spouse, work closely with a Round Rock divorce attorney to protect your parental rights.
Child Support
Child support is a payment system that is designed to ensure that both parents continue supporting their shared children. If your divorcing spouse is an illegal immigrant, it won’t affect the calculation process.
Child support is determined in accordance with the children’s best interests, and while state guidelines consider a range of factors, the parent with higher earnings generally has the child support obligation. Courts can also consider these factors when making child support decisions:
Each parent’s income
Each parent’s earning power
The number of overnights each parent has with the children
The children’s needs, including any extraordinary needs
Who covers the children’s health insurance
Alimony
Alimony is generally ordered only in those divorce cases that leave one spouse without the financial means to self-support at the same level achieved during the marriage while the other spouse is capable of providing financial support.
These payments are generally ordered for an amount and a duration that supports the recipient’s ability to gain greater financial independence – often through education or job training. Just because your spouse is an illegal immigrant does not mean that he or she isn't entitled to spousal support.
FAQ about Divorcing an Immigrant Spouse
Divorce is never easy, and if you are divorcing an illegal immigrant, you could face unexpected complications. The answers to frequently asked questions on the topic can help.
I Married an Illegal Immigrant and Need a Divorce. What Should I Do?
If you are in the difficult position of needing a divorce from an illegal immigrant, you shouldn’t wait to consult with a practiced Round Rock divorce attorney with considerable experience successfully representing clients like you.
Keep in mind that your spouse has conditional permanent residency by virtue of being married to you. If you’ve been married for at least two years, the matter of immigration status may not be an issue because permanent residency can be achieved after two years of marriage.
Divorce courts in Texas don’t consider either spouse’s immigration status in relation to divorce terms, nor do they inform immigration. Nevertheless, if your divorcing spouse has conditional permanent residency, he or she is more vulnerable to deportation at this time.
Further, your spouse’s immigration status can indirectly affect your divorce terms by exacerbating conditions that may disadvantage your ex – such as in relation to child custody arrangements.
Doesn’t Marriage Make My Spouse a Legal Citizen?
When foreign-born individuals marry American citizens, they are granted conditional residential status – as long as the marriage is legitimate and not an immigration scam.
After two years of marriage, your spouse’s conditional status can be elevated to permanent residential status, which divorce cannot alter. However, this process is not automatic and requires the appropriate filings before the conditional status will be removed.
My Child’s Other Parent Is an Illegal Immigrant. How Will That Affect Our Divorce?
Texas courts base their child custody and child support orders on the best interests of the children – not on either parent’s immigration status. As such, your ex can be ordered to pay child support, can be awarded child support, and can be awarded parenting time. The court will only consider your divorcing spouse’s immigration status if it directly affects his or her ability to parent effectively or to pay child support.
Will My Spouse’s Illegal Status Affect the Division of Our Marital Property?
Your spouse’s illegal status is very unlikely to affect the division of your marital property. Any assets that you, your spouse, or the two of you together acquired over the course of your marriage are considered marital and will need to be divided between you in a manner that is considered just and right upon divorce.
If either of you owned property prior to marriage and kept it separate during your marriage, it remains that spouse’s separate asset. While there are many factors that can affect the fair division of marital property, your spouse’s immigration status is unlikely to be one of them.
It’s Time to Consult with an Experienced Round Rock Divorce Attorney
While your spouse’s immigration status shouldn’t directly affect the outcome of your divorce, it can lead to challenging complications that you’ll need to address head-on. Brett Pritchard at The Law Office of Brett H. Pritchard is a seasoned Austin divorce attorney with an impressive track record of helping clients like you successfully navigate the divorce process with their parental and financial rights well protected.
We are on your side and here to help, so please don’t put off reaching out to contact us online or call us at (254) 781-4222 to schedule your FREE consultation and learn more about what we can do for you today.