03. The Gray Area: Immigration & Divorce
Conditional Permanent Residence
If you are married for less than two years at the time your lawful permanent resident application is approved, you will be given conditional lawful permanent residence. This is valid for two years rather than ten years. 90 days before the expiration of the two year period, you must file Form I-751 to remove the conditions on your residence. Legal separation or divorce can impact your eligibility to maintain your residence in the United States.
Hague Convention Divorce
Filing for divorce against a foreign spouse presents special difficulties. Many countries are signatories to the Hague Convention, an international treaty, which requires certain procedures to be followed during the divorce process. Failure to follow these procedures can invalidate your divorce decree and subject you to liability in the foreign country.
Annulment: Immigration Fraud
Annulment means a judge rules that your marriage is void, or never existed as a matter of law. Immigration fraud is a basis for annulment. To prevail, you must prove the fraud and show that you did not live with your spouse after discovering the fraud. This is notoriously difficult to prove and requires a trial with the presentation of competent evidence.
A prenuptial agreement may be advisable if you or your spouse have significant assets before you enter into marriage. Negotiating the agreement will allow you to determine how to divide your separate and community property in the event of divorce. It also allows you to waive spousal support liability in the event of divorce.