Can I divorce my spouse if I only have a Conditional Residence?

July 8, 2014

When an immigrant obtains their green card through marriage to a Lawful Permanent Resident or a US Citizen, they will be issued a Conditional Residence unless the marriage was for more than 2 years. A joint petition to remove the conditions must be filed within 90 days of the 2nd anniversary of the Conditional Residence. This is done by filing Form I-751 with USCIS. Once the application is approved the immigrant will receive their Lawful Permanent Residence status.

 

Many find themselves not able to remove the conditions on their Conditional Residence because their spouse refuse to file the joint petition. Some find themselves trapped in an abusive marriage because they believe that they are not able to petition for their permanent residence on their own. The truth of the matter is that if a joint petition is not possible, for example because the couple divorced, the immigrant is able to apply for a waiver of the joint filing requirement. This means that the immigrant is yes able to get divorced to their spouse and file on their own and obtain their permanent residence.

 

The immigrant will have to show that the marriage was entered into in good faith but that the marriage terminated. Documents must be submitted to meet that burden. For example, to show that the marriage was entered in good faith, records showing combined assets, proof of co-habitation, and affidavits of support need to be filed. Where the immigrant is filing alone because they divorced, there is no 90-day requirement. The application can be submitted once the divorce has been finalized.

 

To be able to file for divorce in Florida you have to prove that you have lived in the state for more than six months. The easiest way to do that is by showing the judge your driver’s license. If you do not have a driver’s license, you will be able to bring a witness to testify to the court that they have known you for more than six months and that you lived in Florida for at least than six months. Where your spouse refuses to sign any documents so that you are able to get divorced or does not come to the hearing, the judge is still able to divorce you.

 

There is no reason to stay married when your spouse is threatening you by using your immigration status. Once you have your conditional residence you are able to continue with your immigration case alone. These cases can be complicated.

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