Does My Immigration Status Negatively Affect My Ability to File for Divorce in New Jersey?

immigration status

By: Alex Guerra

Just as immigration status can play an integral role in criminal law cases, a blending of matrimonial and immigration law is emerging to the forefront of New Jersey attorneys. In a society that continues to see its divorce rates increase, there are non-citizens who may be unsure of their rights and access to New Jersey courts for a lawful divorce. As addressed below, there are certain complexities that can arise in family law matters when immigration is also an issue.

Establishing Residency for the Court’s Jurisdiction

First, for a New Jersey court to exercise authority over divorce proceedings (otherwise known as jurisdiction), at least one party must be a bona fide resident when process is served. What is a bona fide resident? Put simply, a bona fide resident is someone who has an established domicile in New Jersey. Specifically, pursuant to New Jersey statute, N.J.S.A. 2A:34-10, that party must be: (1) physically present within the state’s borders; and (2) exhibit an intention to remain permanently and indefinitely within the state.

How exactly can a party prove intent to remain in New Jersey permanently and indefinitely? According to the 1992 trial court case of Das v. Das, 254 N.J. Super. 194 (Chan. Div. 1992), taking affirmative steps, such as obtaining a New Jersey driver’s license and social security card or executing a multi-year lease on a residence or space for retail business, can be sufficient in proving intent.

Can You Be Disqualified from Obtaining a Divorce Because of Your Immigration Status?

The answer is a resounding no because the court’s authority to grant a divorce arises from your domicile as addressed above, not your immigration status. Therefore, regardless of immigration status, you and your spouse are entitled to equal access to the court system.

Courts are reluctant to enforce immigration laws because denying an immigrant access to divorce courts on the ground that he or she may be in violation of an immigration law would a denial of due process and equal protection under the laws. Moreover, in considering the policy implications, courts exhibit reluctance in overstepping its authority. To deny an immigrant the ability to establish bona fide residency in New Jersey would be potentially assuming or usurping the function of the U.S. Citizenship and Immigration Services (USCIS), the federal agency tasked with enforcing immigration laws.

But Be Aware . . .

This is not to say that after the Final Judgment of Divorce is entered, you or your emigrated spouse are eligible to stay in the country. A spouse can lose their eligibility to naturalize if the divorce occurs before, or even after, the naturalization application is filed.

Where divorces involving immigrants can become even further complicated is when a marriage between a non-citizen and a citizen-spouse lasts for less than three years. For a person living with a United States citizen-spouse to remain eligible for naturalization, one of the eight requirements provides that the marriage has affected for at least three years before the date of the application. As such, if the parties divorce before three years have passed, not only does the non-citizen become ineligible for naturalization, but both spouses become vulnerable to investigations of immigration fraud. It is important to note that there are certain exceptions that may be applicable for naturalization applications involving marriages that lasted less than three years. If you find yourself in this situation it is highly encouraged to consult with an attorney skilled in the nuances of immigration and matrimonial law.

If you and your spouse have decided to get a divorce, and you want to take proactive steps to ensure your immigration status and residency is protected, contact our skilled and knowledgeable divorce lawyers at Lyons & Associates, P.C. To schedule a free, confidential consultation, call us today at 908-575-9777 or contact us online.