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The Challenges of Marrying or Divorcing a Foreign National

foreign national, St. Charles family lawyerIn a perfect world, true love would have no borders, but we do not live in a perfect world. If you wish to marry someone who is a national of another country, you may do so, but there are numerous immigration hurdles to overcome first. Additionally, if the marriage fails and divorce becomes a reality, you should be aware of the potential red tape that may arise for both you and your spouse.

Getting to the United States

There are multiple ways in which a foreign spouse-to-be can come into the United States, but for family law purposes, one is the most prevalent. Fiancé(e) visas are the most common way for foreign spouses to enter the U.S., and they essentially allow for entry so that your marriage can happen within 90 days. By themselves, however, fiancé(e) visas do not confer legal status beyond that one permissible entry. Once you are married, your spouse does not immediately acquire citizenship or even permanent resident status. He or she must still apply separately for those, and it is impossible to predict how long they can take. Many fiancé(e) visa holders are granted conditional permanent residence, which is reevaluated upon the couple reaching two years of marriage, but such consideration is not guaranteed.

Regardless of what visa your foreign spouse receives, you will likely be called upon to act as their sponsor for the application. Most sponsors, at least for immigrant petitions, are family members, and it essentially means that you guarantee that the person will not become a public charge or otherwise cost the U.S. government money. It is a legally enforceable contract that creates a legally enforceable debt, and it can become a serious point of contention in divorce proceedings.

During Divorce

If you decide to get a divorce from your foreign spouse before the two-year period of conditional permanent residency is up, your spouse will have to apply for what U.S. Citizenship and Immigration Services (USCIS) calls a waiver of termination, or they will be immediately subject to deportation proceedings. The waiver essentially asserts that the marriage was not one of convenience—in other words, that it was not entered into for the sole purpose of gaining citizenship. If you have had children, or if you have owned property together or opened joint accounts, these can all be evidence of a legitimate marriage.

The issue of sponsorship can also come up in the divorce process, especially when it comes to asset distribution. The U.S. government can and does call in debts if the foreign national requires governmental assistance, and in many cases, the payment of the debt can greatly reduce the assets available for distribution to both parties. A prenuptial agreement may need to be renegotiated or set aside, or other modifications to a distribution plan may have to be made so that the debt can be paid.

Ask an Experienced Attorney

While an immigration attorney can help with getting the right visa, a divorce attorney can guide you on issues related to asset distribution, support obligations, and other considerations. Contact an experienced Kane County divorce attorney to begin the process. Call 630-377-7770 for a free consultation at Bochte, Kuzniar & Navigato, P.C. today.



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