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Family Law Immigration Law

Divorce and the Undocumented Spouse

Part One of a Two-Part Article

Marriage to a U.S. citizen, by itself, does not confer legal status on an undocumented immigrant. However, a valid marriage — one not entered into for the purpose of evading immigration laws — can provide an avenue to legal status in some circumstances. Thus, if an undocumented immigrant gets divorced, she will generally lose that avenue.

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Elena recently initiated divorce proceedings against her husband, Marcus. She told her family law attorney that he is “controlling” and quick to anger. But suddenly, Elena seems reluctant to continue the proceedings. When her attorney asks why, she confesses that she is an undocumented immigrant. Her husband, a U.S. citizen, had started filling out paperwork to help her get a green card, but never completed the process. He is threatening her with deportation if she goes through with the divorce. She is afraid to keep living with him, but fears being put into removal proceedings and separated from her two children. (“Removal” is the current technical term for deportation proceedings to remove someone from the United States.)

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