Can an undocumented immigrant obtain a divorce?

Q: In August 2014, I came to the United States using a B1/B2 (tourist) visa. I was authorized to stay until February 2015 but did not return to the Philippines. In April 2016, I met and married Mike, a US citizen. Over a year into our marriage, we started to fight over our differences in major aspects --cultural, financial, political, religious, and even minor ones such as decoration and TV show preferences.

We mutually decided these differences are irreconcilable and it will serve both our interests to get a divorce. Though I am agreeable to the arrangement, I am not sure if being an undocumented immigrant disqualifies me from initiating divorce procedures against him. More importantly, I am also worried if the proceedings will expose me to the risk of deportation. He also did not file a spousal petition for me. - Lisa, NY.

A: Being an undocumented immigrant does not disqualify you from filing for divorce against your husband. Just like a US citizen or a lawful permanent resident, if you have valid grounds for filing a divorce proceeding under your state law, you are within your rights to do so. Since this action is governed by state law, in this case, New York law, make sure you satisfy the legal requirements for filing this action. It is much better to consult a family law attorney who handles matrimonial law as there are major implications and consequences of a final decree of divorce.

Secondly, a divorce proceeding per se, as I mentioned, is a matter of state law, thus family courts have jurisdiction over your case. Immigration law, is a federal matter and any application, petition, or removal proceeding are handled by the agencies of the federal government such as the USCIS, NVC, DHS, DOS, BIA, ICE, and immigration courts. The local state court will not contact the Immigration and Customs Enforcement once it discovers your unlawful immigration status.

However, this does not mean that you should be completely complacent. In cases where there seems to be antagony between the parties, which usually happens in divorce proceedings, it is possible your husband, or anyone whom he may have divulged your unlawful status to, could report you to ICE agents. I have learned of cases where the US citizen spouse falsely wrote a letter to ICE claiming that he/she was tricked by the immigrant into marrying him/her just to obtain a greencard.

Also, the actual threat, or even a perceived one, of reporting you to ICE, is your husband’s best leverage against that he could use to his advantage in issues such as custody of children or division of properties.

Consider your circumstances and weigh the risks, especially when there are children involved. It is always best to consult a family law attorney and an immigration attorney who can better provide you with possible legal options as far as maximizing what you can obtain from the final judgment at the family court and prevention of removal/deportation proceedings that may be possibly lodged against you after your divorce.