If we were to get divorced, would she be deported?
Would a judge refuse to grant a divorce if it meant deportation and our child would be unable to see his mother often?
For specific information, you should contact an immigration and/or family law attorney in your state for assistance. However, I can speak generally to issues involved in your scenario.
In the state you are writing from (Florida), there are two grounds for divorce: (1) the marriage is irretrievably broken, or (2) one of the parties is mentally incompetent.
Since mental incompetency does not seem to apply, a judge would presumably grant a divorce if it is shown that the marriage is “irretrievably broken,” which means that the parties have differences that can’t be resolved and were so serious that they caused a total and complete breakdown of the marriage.
The issue with the Visa and your wife’s hesitancy toward getting the divorce are not likely to effect the granting of a divorce. The fact that your wife might need to move out of the country is not in and of itself a basis for not granting a divorce.
Typically, courts will require that the parties maintain a certain minimum living distance from one another after the divorce so as to foster the relationship between both parents and the children.
But, if the need arises for one party to move beyond that distance, the court will consider, among other things, the best interests of the child in determining custody and parenting time in the event of such a move is necessitated.
Parenting arrangements to accommodate a parent in another country can be crafted to meet the unique needs of the parties while still allowing the child to bond and establish relationships with the parents.
Getting a divorce is not in and of itself an automatic sentence of deportation. Your wife can apply for permanent residence, based on an affirmation that she “entered into the marriage in good faith, but the marriage was terminated through divorce/annulment.”
The fact that you have children together helps her position for permanent residence, for it is strong evidence that the marriage was a true marriage not entered into to avoid deportation.
When applying for permanent residence, she should provide a copy of your child’s birth certificate, and other documents to show that you had a life together and that you shared certain marital property. She would also want to include a copy of your divorce decree.
Please note that I am not able to give you legal advice without having thoroughly reviewed your case, and therefore you should not rely on this information as an establishment of an attorney-client relationship.
If you need detailed information or advice, or wish to take specific action in this matter, you need to contact an attorney immediately for assistance. Cordell & Cordell does represent clients and nationwide.