Before we dive too far into this, we want to explain that there is a much more concise term than “Someone Who isn’t an American Citizen,” and that term is “Foreign National.” When divorcing a foreign national, much of discussion points – such as custody, division of assets, and child support- are still major points of interest, but how they are handled will be a bit different depending on a couple different factors, such as how long the marriage lasted, what country the foreign national originates from, and whether or not you signed an Affidavit of Support when entering the marriage. We will dive further into these caveats, and additional points to consider, as we discuss tips for divorcing someone who isn’t an American citizen.
Division of Assets when Divorcing a Foreign National
When it comes to marriages/divorces that occur between residents of different countries, there are a set of guidelines that have been established by the Hague Conference that dictates how international divorces should be handled. This convention allows the divorcing couple to choose the law of any country where either spouse is a citizen, the law of any country where either spouse has primary residence, or the law of any country where one of the spouses has started a new primary residence. If the couple does not proactively make a decision, the division of assets occurs according to the laws of the first country that they primarily resided together after the marriage contract was enter.
For example, let’s say you’re an American Citizen, and you marry someone from Finland, and then you and your spouse move to Belgium together and establish residency. If you divorce, you can choose to follow the division of asset laws from either the USA, Finland, or Belgium. If you don’t determine a country to follow the division of asset laws of, your default country will be Belgium.
Luckily, there are currently 91 countries that participate in the Hauge Conference, which you can view here. This becomes a bit more complicated if either member of the couple is from a country that doesn’t participate in the Hague Conference, and will likely require direct legal advice. Click here to give us a call.
Child Custody and Child Support when Divorcing a Foreign National
Unlike division of assets, the Hague Conference has not yet determined a standardized set of laws regarding child custody. However, it is generally agreed that a child should reside within the state of their primary residence, and that if either parent removes that child from that state, that it can be considered parental kidnapping. Likewise, nations are also required to enforce child support agreements that are created in other nations regardless of where either parent moves after the divorce. If you think your ex-spouse has fled to country to try to avoid child support payments, then it is likely time to get a lawyer involved, and we are happy to take your call.
Residency and Conditional Permanent Resident Status when Divorcing a Foreign National
When considering divorcing a foreign national, it will be important to consider how long you have been married. In the US, a noncitizen can apply for naturalization after two years of marriage. During the initial two years, the foreign national has a “conditional permanent resident status. This is similar to a permanent residence status, but it lasts only two years. After that point, the foreign national can file for US Citizenship.
If a couple finalizes a divorce during the conditional permanent resident status, the foreign resident does not automatically lose their ability to stay in the US, but it can affect their ability to file for citizenship. At this point, the foreign national would need to ask the U.S. Citizenship and Immigration Services to waive the joint filing requirement and likely include evidence that the marriage was genuine, and not marriage fraud occurring for the sake of obtaining citizenship.
If the divorce is proceeding during the time that the foreign national is applying for US citizenship, the US citizen in the relationship can refuse to sign the paperwork that allows the foreign national to obtain citizenship through marriage. At this point, it becomes relatively complicated, and it is best to consult a lawyer.
In some scenarios, the foreign national can lose their conditional resident status and become deported.
Affidavit of Support and Immigration Sponsorship when Divorcing a Foreign National
When a US citizen enters a marriage contract with a foreign national, they are often required to sign an I-864 Affidavit of Support. This is a contract that establishes the US citizen in the relationship as financially responsible for the noncitizen spouse that they are sponsoring. Generally, the US citizen is still obligated to financially support the immigrant spouse after divorce. Most people in this scenario opt to working with a divorce lawyer to reach a settlement between the two spouses.
The obligation of the affidavit ends when any of the 4 situations occur:
The immigrant spouse dies
The immigrant spouse becomes a US citizen
The immigrant spouse accrues 40 work quarters credited towards Social Security (which is approximately ten years)
The immigrant spouse permanently leaves the US
There are rare exceptions to this that occur with specific timing situations with paperwork, or if marriage fraud is occurring.
Tips for those divorcing a foreign national
Now that we’ve established some preliminary information on how this works, here are a few tips to simplify the process:
Hire a lawyer. While we are a bit biased, we believe lawyers are helpful in all divorce situations and should generally be used during divorce. However, having a legal professional in your corner becomes exponentially more important as the legal situations become more complicated – such as when divorcing a foreign national.
Determine the state for division of asset laws. Many countries, including the ones that participate in the Hauge Conference, have very different divorce laws and therefore the possibility of very different division of assets outcomes. If your first country of residence after marriage is the US, then it will be the US by default.
Understand where you and your spouse is during their journey to citizenship and how the divorce might effect that process.
We understand that divorce is rarely an easy process, and we aim to simplify that journey by clearing the road blocks. Going through your divorce with a certified legal professional can make the process simpler and less stressful. Call us before your ex does!
Want to read more from our divorce tips series? Click here!