Understanding How to Divorce a Foreign-Born Spouse

Visa next to wedding ring

A 2021 report from the U.S. Census Bureau offers interesting data when it comes to marriage in the U.S. On average, foreign-born adults are more likely to marry and less likely to remarry when compared to native-born adults. And those born in the U.S., both men and women, are more likely to marry before the age of 24. Foreign-born adults tend to wait until they are older to marry.

Despite the differences outlined in the report, one statistic remains true. About half of all U.S. marriages end in divorce. Let’s look closer to see how these marriages and divorces are different when a spouse isn’t a U.S. citizen.

Marriage to a Non-U.S. Citizen Isn’t Uncommon

The latest data available shows that about 10% of all married households include one foreign-born spouse, with the majority born in Latin America or the Caribbean. That number grows to 20% when including marriages where one or both spouses are foreign. When you look closer at individual states, immigration hubs like Illinois have a greater share. According to the U.S. Census Bureau, 61% of foreign-born spouses are naturalized citizens and 39% are noncitizens.

Is Divorcing a Non-Citizen Difficult?

No matter who is in the marriage or the length of the union, divorce forces decisions and actions, big and small. A skilled divorce attorney at the Law Offices of Jonathan Merel, P.C., can guide you through each step.

Like other Illinois marriages, you must be living separately for at least six months before filing for divorce. You may still live under the same roof, but not live and behave as a couple.

How Divorce Affects the Foreign-Born Spouse

Listed below are considerations more specific to divorcing a foreign national.

  • Your spouse may lose their residency status if the marriage ends within two years. They must apply for a termination waiver if they want to pursue citizenship. Both spouses must sign this waiver petition affirming they entered the marriage in good faith. If the immigrant is already a permanent resident when the marriage ends, divorce won’t affect their immigration status.
  • Divorce can delay when the foreign spouse can obtain citizenship. There is a three-year residency requirement to take a citizenship exam for those married to a U.S. citizen. That waiting period increases to five years if they aren’t married.
  • When determining the division of assets, spouses are allowed to choose laws from their country of residence. This practice for dealing with divorce was established by the Hague Conference on Private International Law. Dividing assets can be particularly tricky if they are in a country that isn’t a member of the Hague organization.
  • The Convention on the International Recovery of Child Support rules require countries to enforce child support agreements in other nations. Your spouse must still honor child support payments regardless of where they live.
  • Most spouses of noncitizens sign an I-864 Affidavit of Support when they first marry and sponsor their spouse’s immigration application. This document states that the U.S. citizen will be able to support the noncitizen spouse. You may be required to continue to support your former spouse even after the marriage ends.

Child Custody Issues

There are no international guidelines about awarding custody. In Illinois, the courts consider the parents’ citizenship status, but child custody is not decided based on that alone. The best interest of the child is always a priority. While custody doesn’t benefit from worldwide rules, there are international laws related to abduction. A foreign parent cannot legally take a child to live in a foreign country. Nations have agreed that a child should be returned to their country of primary residence if one parent takes them outside their home country. Nations will cooperate to restore a custody arrangement when a foreign spouse violates the agreement.

What About Alimony?

As mentioned earlier, the U.S. citizen signs documentation that they will financially support the foreign spouse so that they are unlikely to need public assistance from the government. Still, there can be situations where the American spouse is granted alimony. If the spouse who is required to pay alimony moves to another country and stops paying alimony, it is difficult to recoup that loss. Other countries are less likely to enforce these orders, but extradition is possible. On a positive note, the U.S. spouse no longer needs to provide support, as required by the I-864 Affidavit of Support, if their former noncitizen spouse permanently leaves the U.S.

Next Steps

If you or your spouse is a foreign national and you are considering divorce, take steps to understand your rights and obligations. Our experienced divorce attorneys will represent what’s best for you with passion and compassion.

Schedule a consultation at the Law Offices of Jonathan Merel, P.C., by contacting us online or giving us a call at (312) 487-2795.

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