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The Complexity of Divorce for Undocumented Spouses

A divorce is an uncertain time for anyone. It can be even more complicated and challenging for an undocumented individual living in the United States. It is not uncommon for undocumented spouses to fail to seek legal representation or to fight for their fair settlement through the divorce due to their lack of citizenship or green card status.

Talking to a divorce attorney is the first step in correcting this misunderstanding. As long as the individual meets the requirements for a divorce in Illinois, including the jurisdiction requirements, he or she can obtain a divorce, seek child support, or exercise parental responsibilities as ordered through the court or a mediated divorce settlement agreement.

Immigration Status and Removal
In some cases, undocumented parents may be able to stay in the country even if they are currently in the process of a removal hearing. A divorce attorney can be instrumental in evaluating the case on an individual basis. These situations, which include a parent facing removal from the U.S. through an immigration court ruling, can be overturned under specific conditions. The parent facing removal must prove that the U.S resident parent and the child or children would face unusual or exceptional hardship if the undocumented parent was to be removed from the country.

Financial considerations are relevant, as are medical needs for the child, or the child’s ability to live outside of the USA, and the potential negative psychological impact of moving outside of the country. The judge focuses on the best interests of the child. In cases where the undocumented parent leaving the country causes a hardship, the immigration judge may stop the removal and change the individual’s status to that of a permanent legal resident.

Parental Responsibilities and Undocumented Parents
Another common myth that a divorce attorney can correct for undocumented parents it the concern about the allocation of parental responsibilities by the court. In Illinois, the immigration status of a parent is not a factor in the determination of parental responsibilities.

This means that undocumented parents can make decisions as allocated by the court. These decisions can include education, religious upbringing, medical treatments, and even travel outside of the country. In many cases, both parents may have parental responsibilities in joint form, or one parent may be responsible for specific decisions based on the determination of the parent’s ability to care for the well-being of the child or children.

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