Divorce and the Undocumented Spouse

A family law practitioner should understand the basics of immigration law in order to properly advise his or her client about the effect of a divorce on immigration status. If a client was not born in the United States, the attorney should determine the client's immigration status by asking appropriate questions and identifying relevant issues. But family law attorneys are often not familiar with immigration law. Accordingly, rather than proceed to address these issues, it is strongly recommended that the family law attorney consult with an immigration attorney. Still, a general knowledge of the issues that arise when one party is an immigrant will allow the attorney to give at least rudimentary advice, which can then be followed up through consultation with a lawyer with greater immigration law expertise.

To this end, the family lawyer should first be familiar with the following basic immigration terms:

• Nonimmigrant: This is someone in the United States for a limited period of time and for a specific purpose, such as tourism, work or study.
• Lawful permanent resident (LPR): This is a non-citizen who has permission to live and work in the United States on a permanent basis. Proof of LPR status is known as a “green card.” An eligible LPR may apply to become a citizen.
• Conditional resident: This is a person who has been issued a green card for a period of two years based on marriage, who must “lift” the conditions to become a permanent resident.
• Undocumented immigrant: This is someone who entered the United States illegally (“without inspection”) or has stayed beyond an authorized date. The manner of entry is an important distinction, because most immigrants who entered without inspection are barred from becoming lawful residents even through marriage to a U.S. citizen, unless they are eligible to receive a hardship waiver.

Effect of Divorce on Immigration Status

While lawful status can be obtained based on a marital relationship, several thorny issues are raised if the couple divorces. (For the purposes of this article, we will assume the immigrant spouse is female.)

First, at some point, the client might be detained or referred for removal, an administrative process where the immigrant has an opportunity to present any “right to relief” to remain in the United States. If she is no longer married, she cannot qualify for relief through a spousal visa petition. (Marrying while in deportation proceedings is exceedingly suspect and triggers application of a higher standard of proof. Immigration and Nationality Act (INA) sec. 245(e) (3).)

Second, even if she is not placed into removal proceedings, she has no right to work. If her husband does not provide much in the way of alimony or child support, she will be in greater economic difficulty, and lack money to contest any failure to contribute. (The right to receive alimony is not dependent on immigration status. Undocumented immigrants have the same rights as lawful residents in divorce proceedings.)

Third, the U.S. citizen spouse may try to use the wife's undocumented status as a lever in a custody determination. State custody laws generally do not include immigration status of either parent or children as a factor to be considered in custody determination. See “Custody of Children in Mixed-Status Families: Preventing the Misunderstanding and Misuse of Immigration Status in State-Court Custody Proceedings,” Fata, Orloff et al, Family Law Quarterly, Vol. 47, No. 2 (Summer 2013) at 196. Nevertheless, in reality, family court judges in custody battles between a U.S. citizen and undocumented immigrant may have difficulty applying the best interests policy when the undocumented parent is under a potential threat of removal. “The Intersection of Immigration Status and the New York Family Courts,' Fund for Modern Courts, Feb. 2015 at 18.

So, while immigration status is not in itself a reason to deny custody and does not mean a parent is not fit, the court, applying the “best interest of the child” analysis, may be influenced by the mother's immigration status. After all, if the undocumented parent cannot obtain work, has no decent place to live, or is under stress due to uncertainty about her right to remain in the United States, her family's well-being may be affected. These factors might figure into the court's calculus about the child's best interest.

Fourth, if the client does face removal, this will impact her relationship with her children, as she can be deported even if they are U.S. citizens. The mother would face the impossible choice of leaving and not seeing her children again — perhaps, because due to prior unlawful presence, she could be barred from re-entering the U.S. for many years — or bringing them with her to a country with which they may be wholly unfamiliar (if the ex-spouse does not object).

The undocumented wife may also struggle with leaving children in the United States if their only caretaker is a parent she considers unfit. (Additionally, keep in mind that if the children do not have lawful citizenship or resident status, they also could be subject to removal. In some cases, children of a U.S. citizen father or step-father may have become U.S. citizens by derivation, which should be explored.)

Faced with these difficulties, the client's attorney should explore whether a divorcing spouse has any way to obtain legal status so that she will have the option to find decent paying work, obtain health care and keep her family together.

In Part Two of this article, we will discuss the possibility of, in certain circumstances, obtaining legal status through the Violence Against Women Act (VAWA).

***** Laurie J. Woog is Of Counsel with Mandelbaum Salsburg, Roseland, NJ. The author wishes to thank Elisabete Rocha, an associate at the firm, for her research assistance.