No matter what the circumstances may be, divorce is undeniably a complicated process. Some divorces cases can be more complex than others. This article will explore complications that often arise in cases involving divorcing non-U.S. citizens.
Is There A Difference In Divorce Process For Non-U.S Citizens?
The process of divorcing a non-U.S.citizen is similar to the process of any other divorce. All divorce process typically starts by filing a petition. After a petition has been filed, spouses proceed by serving divorce files, negotiate a settlement, attend divorce trials if required, and, lastly, finalizing the divorce judgment.
How Is Divorcing a Non-U.S. Citizen Than Divorcing a Citizen?
Although divorcees can expect a similar general process of a divorce, the outcome of divorcing a non-U.S. citizen can have complications in several issues such as;
Residency Issues
One of the biggest concerns when divorcing a non-U.S. citizen is how the divorce will affect the immigration status. Generally, the immigration status of foreign spouses who are…
- permanent residents and holds a 10-year Green Card, or
- U.S. citizens through the process of naturalization
will not be affected by a divorce. The impact that divorce has on residency issues typically depends on the length of a marriage. For instance, if the divorce with a foreign spouse occurs within two years of the marriage, the spouse may lose their residency status. This is due to conditional resident status. Although non-citizens usually get a Green Card after marriage, it will not be a permanent residence status. However, spouses can apply for a termination waiver if they want to maintain their status. To do so, it is usually required that both spouses sign a waiver to prove that they entered the marriage in good faith.
Division of Assets
When divorces occur between a U.S. citizen and a foreign spouse, the division of assets can be challenging. Generally, the overseas property is typically subject to the jurisdiction of the country where each spouse resides. The Hague Conference on Private International Law sets the guidelines for handling divorce cases between foreign spouses. This establishment attempts to harmonize judicial rulings across international borders in the areas of domestic matrimonial laws. It states that spouses are allowed to choose laws from their country of residence to determine the division of assets. Common types of overseas property that are dealt with in a divorce include;
- Bank accounts
- Foreign retirement accounts
- Multiple homes
- Investment properties
- Foreign trust
Currently, 89 countries are members of the Hague Convention. However, complex issues can still arise for divorces that are dealing with assets in a nonmember country.
Child Support
Child support agreements are recognized internationally by the Convention on the International Recovery of Child support. This Convention establishes essential rules concerning international child support payments. For instance, the Convention enforces child support agreements in all nations. This means that regardless of the spouse’s nationality or their place of residence, they must still honor child support agreements issued.
Affidavit of Support
Financial obligations in a marriage can sometimes extend beyond marriage. When divorcing non-U.S. citizens, the citizen spouse may still be obligated to support their immigrant spouse financially, otherwise known as Form I-864. The Affidavit of Support is a signed contract accepting financial responsibilities for family members seeking a Green Card which intends to support the named immigrant on the affidavit.
The spouse or the individual that has signed the affidavit of support becomes the “ financial sponsor” of the named immigrant until they have become a lawful permanent resident. Typically financial sponsors must be U.S. citizens or U.S. Green Card holders of at least 18 years. Once the affidavit has been signed, the sponsoring spouse accepts legal responsibility for financially supporting the foreign spouse. The affidavit is a legally enforceable contract. The legal obligation of the sponsoring spouse may end under four circumstances;
- The death of either spouse
- The foreign spouse has ceased to be a lawful permanent resident
- The foreign spouse has permanently departed the United States
- The foreign spouse no longer needs support because they have fulfilled working for 40 quarters in the United States
Can I Still Get a Divorce If My Spouse Has Left The Country?
Often, many married couples tend to start living separately even before they file for divorce. During this time, the foreign spouse may decide to return to their home country. Fortunately, spouses can still obtain a divorce under two conditions, meet residency requirements and serving their spouse.
Residency Requirements
Divorce is legally binding when a legal, authorized court issues it, commonly referred to as having “jurisdiction” or the official power to make legal decisions and judgments over a case. Each state has its own laws and jurisdiction regarding a divorce. However, all states commonly have some form of residency requirements. Typically, it is required that at least one of the spouses meet this requirement.
In California, filing a divorce requires two residency requirements. First, either of the spouses must have lived in California for at least six months. Note that short absences or vacations in another state do not hinder the ability to fulfill this requirement. Second, the petitioner (the spouse filing a divorce) must have lived in the county where they plan to file the divorce for at least three months.
Service of Divorce Papers
Under the law, when an individual pursues any legal action taken against another party, the law generally requires the petitioner to send a formal notice to the other party notifying them that they have started the legal process. Similarly, when a spouse files a divorce, they must give the other spouse notice of the paperwork that has been filed. The legal way to provide a formal notice to the other party is “serving divorce papers”. Serving a spouse essentially means sending the other spouse copies of any paper that has been filed with the court.
This step is crucial for a spouse to obtain a legally binding divorce successfully. Serving a spouse may be a challenge when the case involves an out-of-country spouse who has left the U.S. The out-of-country spouse should accept and sign a form declaring that they have received the notice to avoid complexity. However, in some cases, the out-of-country spouse may not agree to accept service. In that case, the spouse filing the divorce must consider another process for service. Depending on each case, this might require the involvement of the U.S. Marshal’s Office, authorities of the foreign country, or Letters Rogatory.
Contact Pride Legal
If you or a loved one has been looking to gain U.S. citizenship through marriage, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
