Immigration: Can I get a Divorce if my Partner is out of the Country?

​Whether or not someone has a visa, residency or citizenship in the US, does not mean that they do not have the same problems as those who do.  On the contrary, many of these people have even more problems because they do not know how our system works, how to access services or that they are even eligible for many of the same services as citizens.  It is important for people to be able to navigate their lives while they are working on their immigration issues which is why I write this series of articles. 

I often have clients asking questions about things that deal with family law almost as much as immigration or business.  They ask all questions relating to family relationships such as marriage, divorce, custody, common property issues, etc.  Recently, a client came in asking about getting a divorce.  The first question he had was whether he could even get a divorce in the US since he did not have any legal immigration status.  The answer is yes, he can get divorced here in the US regardless of his immigration status since the laws that control family law are passed by the state, not federal government and immigration status is irrelevant. 

He then told me that his spouse is not even here in the US since she did not want to follow him here when he left their country.  He came here to find work in order to send money back to his family.  He wanted to know what he could do to fix this problem here since leaving the US to travel back to his country for a divorce would prevent him from being able to return again without serious risk.  If he left to go to his country, he probably would not be able to return again.  He also asked several other questions.  Could he still get divorced without her being in the US?    What if she is not able to come to Michigan to respond to the divorce?  What if she refused to allow the divorce regardless of her presence in the US?

The answer to all of these questions is that, yes he can divorce her here in the US without her physical presence, but that there are also steps in the process to protect her as well.  Michigan is what is called a “no fault” divorce state where the plaintiff (person filing for divorce) does not have to prove certain things to justify the action, but only has to make specific allegations in the request.  Michigan law then allows the plaintiff to move forward with the process, following strict procedural rules.  This process is in place to protect both sides of the dispute and to allow a legal marriage to be terminated for the good of both parties.  It would be wrong for the government to prevented people from moving forward in their lives because of an uncooperative spouse.

Although the process exists to resolve this and many other family law issues, they are very technical and require someone with experience and knowledge to navigate the system.  More than this, however, it is critical for your attorney to be able to evaluate how this will impact your immigration status or ongoing process.  Whether the law allows for a divorce or not, there are often very serious immigration consequences to all matters involving the court system.

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