From support to child custody to division of marital property, divorce involving an undocumented immigrant can be complex
Few issues are more politically charged than those surrounding immigration. If you were married to an undocumented immigrant and are seeking a divorce, you have both questions and concerns regarding how to proceed, what your rights are and what the courts will take into consideration. While immigration status alone does not affect either spouse’s right to obtain a divorce, it is a potentially more complicated process and requires legal help from a divorce attorney with knowledge of immigration laws.
Equal access to the court system
When it comes to divorce, the Constitution ensures that the process of ending a marriage to an undocumented immigrant is the same as it would be for divorcing a U.S. citizen and, as such, both spouses have access to the court system. However, while the court is not obliged to report the status of an undocumented immigrant to Immigration and Customs Enforcement (ICE), the judge may choose to do so. This can lead to the deportation of the undocumented immigrant.
Child custody issues
While a parent’s immigration status doesn’t affect child custody per se, it can certainly be a factor. The “best interests of the child” will still be the main determinant in the court’s decision, so that does not automatically eliminate the custody rights of the undocumented immigrant parent. However, if deportation is likely or pending (or if that parent has already been deported), the judge may deem that it presents an unsuitable risk for the child’s well-being.
Child support and spousal support issues
Financial support can be difficult to secure when divorcing an undocumented immigrant. Many undocumented immigrants work on a cash basis or use fraudulent Social Security cards, with no bank account and no way to prove income. Hopefully, your spouse will do the right thing by you and your children, but enforcement may otherwise be difficult.
What if your spouse has already been sent to a detention center?
This does not affect your right to proceed with a divorce. Papers can be served at the detention center. If required, the papers will be translated into the undocumented immigrant’s native language.
If you are planning to divorce an undocumented immigrant spouse, contact our New Brunswick attorney
While not every divorce requires a lawyer, ending a marriage with an undocumented immigrant requires the legal guidance and advocacy of an attorney with experience in this area. To discuss your situation and your needs, please call our office at (732) 214-1103 or contact us online to schedule a confidential consultation.