Introduction
The K-1 visa, commonly referred to as the “fiancé(e) visa,” is designed to allow a foreign national to enter the United States for the specific purpose of marrying a U.S. citizen. Once admitted, the couple must marry within 90 days. If the marriage occurs, the foreign national can apply for adjustment of status to become a lawful permanent resident. However, if the relationship ends—whether by separation, annulment, or divorce—the implications can be severe for both parties, especially for the K-1 visa holder.
When divorce proceedings arise in Florida during or shortly after the K-1 visa process, understanding the legal ramifications becomes essential. Navigating this intersection between federal immigration laws and state divorce laws requires the experience of a knowledgeable Tampa divorce lawyer. This article provides an in-depth guide to how divorce affects K-1 visa applicants residing in Florida, including timing issues, adjustment of status, removal of conditions, and custody implications when children are involved.
Overview of the K-1 Visa Process
The K-1 visa process begins when a U.S. citizen files Form I-129F, Petition for Alien Fiancé(e), with U.S. Citizenship and Immigration Services (USCIS). Once approved, the foreign fiancé(e) undergoes consular processing in their home country. Upon entering the U.S., the couple must marry within 90 days, or the K-1 visa holder must leave the country.
Once married, the foreign national can file Form I-485 to adjust status to a lawful permanent resident. If the marriage is less than two years old when the adjustment is granted, the immigrant receives conditional permanent residency and must later file Form I-751 to remove those conditions.
If divorce occurs at any point in this sequence, it can disrupt or terminate the immigration process. A Tampa divorce lawyer can help clients understand the exact point in the timeline and the associated legal consequences.
Divorce Before Marriage: What Happens If the K-1 Couple Does Not Marry?
If the couple never marries within the 90-day window, the K-1 visa holder must leave the United States. There is no automatic grace period and no legal mechanism for extending the K-1 visa beyond 90 days. Furthermore:
- The foreign national cannot adjust status based on another marriage unless they first leave the U.S. and re-enter under a different visa.
- Employment authorization and legal presence expire with the visa unless renewed by specific application.
- Remaining in the U.S. beyond the 90 days can trigger unlawful presence, which may lead to future inadmissibility.
In such cases, even if the relationship continued informally or the couple planned to marry later, the law provides no exceptions. A Tampa divorce lawyer can assist the U.S. citizen in formally ending the relationship, while an immigration attorney may advise the foreign national on voluntary departure or alternative visa options.
Divorce After Marriage But Before Adjustment of Status
In situations where the K-1 couple marries within 90 days but separates or divorces before the adjustment of status process is complete, the consequences for the foreign spouse can be dire. The K-1 visa holder cannot adjust status independently unless the adjustment is based on the bona fide marriage to the K-1 petitioner.
This means:
- If the marriage ends before Form I-485 is approved, the application is generally denied.
- The immigrant becomes removable unless they qualify for a different form of relief, such as asylum or a U visa.
- Even if the foreign spouse remarries a different U.S. citizen, adjustment is not allowed unless they first leave the country and reapply from abroad.
USCIS may also investigate the marriage to determine if it was entered into in good faith. If the foreign national can demonstrate that the marriage was legitimate but ended in divorce, it may still be possible to request discretionary relief or reapply under a different category.
A Tampa divorce lawyer can ensure that any dissolution of marriage proceeding in Florida aligns with the timeline and documentation needed to avoid negative immigration outcomes.
Divorce After Conditional Green Card Is Granted
If the couple marries and the K-1 visa holder receives a conditional green card (valid for two years), the next hurdle is removing conditions via Form I-751. Normally, both spouses file jointly to request removal of conditions. If the marriage ends before filing Form I-751, the foreign national must file a waiver and prove:
- The marriage was entered into in good faith
- The relationship ended due to divorce, annulment, abuse, or death
- They were not at fault in the termination of the marriage
The divorce must be finalized before the waiver is filed. If the couple is separated but not yet divorced, USCIS may issue a Request for Evidence (RFE) or deny the petition.
The waiver process is more complicated than a joint petition and often involves:
- Sworn affidavits from friends, family, or therapists
- Joint tax returns, lease agreements, photos, or proof of shared accounts
- Documentation of cohabitation, children, or joint responsibilities
USCIS scrutinizes I-751 waivers closely, especially in cases of early divorce. A Tampa divorce lawyer can coordinate with immigration counsel to ensure that the divorce decree and court findings support the waiver request and avoid any implications of marriage fraud.
Divorce After Removing Conditions and Becoming a Permanent Resident
Once the conditions are removed and the foreign national becomes a lawful permanent resident (green card holder), divorce has far fewer immigration consequences. However, divorce may delay or complicate the path to U.S. citizenship.
- If the immigrant was planning to apply for naturalization after three years based on marriage to a U.S. citizen, divorce may require waiting five years instead.
- USCIS may look back at the initial K-1 marriage to verify it was bona fide if naturalization is sought soon after divorce.
- If the immigrant remarries and sponsors another spouse, they may face additional scrutiny based on prior filings.
In some cases, allegations of fraud or misrepresentation from the divorce proceeding can trigger immigration consequences even after permanent residence is obtained. A Tampa divorce lawyer can help ensure that the divorce record is free of damaging statements or unsupported claims that may jeopardize the immigrant’s long-term status.
Florida Divorce Law as It Relates to K-1 Visa Marriages
Florida law treats K-1 marriages the same as any other marriage. Once the couple marries in Florida, they are subject to the same legal standards for divorce, including:
- Equitable distribution of marital assets
- Potential alimony or spousal support
- Creation of parenting plans if children are involved
- Mandatory financial disclosures
Immigration status does not affect a party’s right to file for divorce. Florida courts require only that one party reside in the state for six months before filing.
However, immigration issues may affect:
- The ability of a party to work, support themselves, or access housing
- Service of process if one party returns abroad
- Travel and time-sharing with children when international borders are involved
A Tampa divorce lawyer can tailor the legal strategy to address these complications and ensure that the divorce proceeds smoothly, even when the couple’s future in the U.S. is uncertain.
Alimony Considerations in K-1 Visa Marriages
One often misunderstood issue in K-1-related divorces is whether the U.S. citizen petitioner owes financial support to the foreign spouse post-divorce. The answer depends on the intersection between state and federal obligations.
When a U.S. citizen sponsors a fiancé(e) for a K-1 visa, they must sign Form I-134 (Affidavit of Support) and eventually Form I-864 (Affidavit of Support Under Section 213A). The I-864 is a binding contract with the U.S. government promising to support the immigrant at 125% of the Federal Poverty Guidelines until they:
- Become a U.S. citizen
- Work 40 quarters (approximately 10 years)
- Leave the U.S. permanently
- Die
This obligation continues even after divorce unless the immigrant reaches one of the terminating conditions. Florida courts do not typically enforce the I-864 directly as alimony, but the federal courts do recognize it as enforceable through contract actions.
A Tampa divorce lawyer can help determine whether temporary alimony or bridge-the-gap support is appropriate under Florida law and whether the I-864 support obligation should be pursued in a separate legal action.
Child Custody and Support When One Parent Is a K-1 Visa Holder
If the K-1 couple has a child together during or after the marriage, child custody and support become significant issues in the divorce.
Florida courts prioritize the best interests of the child in all custody decisions. Immigration status is not one of the enumerated statutory factors, but it can affect:
- Travel logistics for international visitation
- Risk of deportation or parental unavailability
- Access to health insurance, public benefits, and education
- Ability to obtain travel documents and consent for relocation
If the K-1 visa holder is at risk of removal or resides outside the U.S., courts may require:
- Supervised or virtual visitation
- Passport surrender or travel restrictions
- Bonds or financial guarantees before international travel with the child
Child support obligations are determined based on income and time-sharing, regardless of immigration status. A Tampa divorce lawyer can assist in crafting a time-sharing and support plan that accommodates immigration limitations while protecting the child’s well-being and both parents’ rights.
Allegations of Marriage Fraud and Divorce Proceedings
In emotionally charged divorces, one spouse may accuse the other of entering the marriage solely for immigration benefits. These claims can have serious consequences beyond family law:
- USCIS may revoke green card status based on findings of fraud
- The immigrant may be placed in removal proceedings
- Future visa or adjustment applications may be denied based on credibility concerns
- The U.S. citizen may face scrutiny if they sponsor another foreign spouse in the future
Florida courts generally do not have jurisdiction to determine immigration fraud, but statements in court filings can be used in immigration proceedings. A Tampa divorce lawyer must ensure that allegations are supported by facts and not used as a tactical weapon.
Conversely, if the immigrant spouse was subjected to abuse or coercion, they may qualify for immigration relief under the Violence Against Women Act (VAWA). VAWA allows battered spouses of U.S. citizens to self-petition for permanent residence without the abuser’s cooperation.
This dynamic requires careful management of both family law and immigration law to avoid unintended consequences.
Annulment vs. Divorce in K-1 Visa Marriages
Some couples explore annulment rather than divorce, hoping that annulment may simplify immigration consequences or remove the appearance of marriage fraud. However, annulments are difficult to obtain in Florida and are only granted in specific circumstances, such as:
- Bigamy or incest
- Lack of mental capacity
- Duress or coercion
- Fraud that goes to the essence of the marriage
Simply changing one’s mind or discovering incompatibility is not grounds for annulment. Moreover, if the marriage is annulled, the immigrant may lose the ability to file Form I-751, since that process requires proof of a valid marriage.
A Tampa divorce lawyer can assess whether annulment is legally feasible and whether it is strategically wise in light of ongoing immigration processes.
Post-Divorce Immigration Strategies for Former K-1 Visa Holders
Once divorce is finalized, the former K-1 visa holder’s options depend on their current status and how far they progressed in the adjustment process. Potential paths include:
- Voluntary Departure: If no adjustment was made, the immigrant may leave voluntarily to avoid accruing unlawful presence.
- Change of Status: Some immigrants may qualify for another visa category, such as employment-based visas or student visas.
- VAWA Relief: Victims of abuse can self-petition for lawful status.
- Cancellation of Removal: If already placed in proceedings, the immigrant may apply for relief based on length of time in the U.S. and family hardship.
- Reentry Under New Petition: If the immigrant remarries another U.S. citizen, they may reapply for a spousal visa from abroad.
Each path has legal risks and procedural requirements. Coordination between a Tampa divorce lawyer and an immigration attorney is critical to avoid irreversible immigration penalties.
FAQ: How Divorce Affects K-1 Visa Applicants in Florida
What happens if I don’t marry within 90 days of entering on a K-1 visa?
You must leave the United States. The visa expires, and you cannot adjust status unless you leave and return under a different visa category.
Can I stay in the U.S. if I marry but divorce before adjusting status?
Not typically. If you divorce before your green card is approved, your adjustment of status will likely be denied unless you qualify for an independent form of immigration relief.
Can I still get a green card if I divorce after receiving a conditional green card?
Yes, but you must file a waiver of the joint filing requirement and prove that the marriage was bona fide. The waiver is more difficult but possible with strong evidence.
Will my divorce affect my citizenship application?
It may delay your eligibility. You may need to wait five years instead of three, and USCIS may scrutinize your marriage more closely during the naturalization process.
Can my ex use immigration status against me in divorce?
They can try, but courts in Florida do not base divorce outcomes on immigration status. Allegations of fraud must be supported by evidence and can backfire if used maliciously.
What if we have children? Can I still get custody or visitation?
Yes. Florida courts prioritize the child’s best interests. Immigration status alone does not disqualify you from custody or time-sharing rights.
Am I entitled to alimony if I’m the foreign spouse?
Possibly. Florida courts consider several factors. You may also be entitled to support under the I-864 affidavit signed by your U.S. citizen spouse, enforceable in federal court.
Can I get an annulment instead of a divorce?
Only in limited cases. Most K-1 visa marriages will not qualify for annulment unless fraud or incapacity can be proven.
Do I need both a divorce lawyer and an immigration lawyer?
Yes. A Tampa divorce lawyer can handle your family law case, while an immigration lawyer ensures your status and options are protected after divorce.
What if I’m afraid of abuse or coercion?
You may be eligible for VAWA protection. This allows you to self-petition for lawful status without your spouse’s involvement.
The intersection of divorce and K-1 visa status is highly technical and time-sensitive. Whether you’re a U.S. citizen facing a complex breakup or a foreign national uncertain about your legal future, working with an experienced Tampa divorce lawyer ensures your rights are protected and your immigration interests are considered throughout the divorce process.
The McKinney Law Group: Professional Divorce Counsel for Clients in Tampa
At The McKinney Law Group, we provide the guidance you need to make empowered choices during divorce. Our team helps Tampa residents manage legal, financial, and parental issues with calm, confidence, and clarity.
We offer support in:
✔ Contested and uncontested divorces under Florida law
✔ Child custody, support, and time-sharing arrangements
✔ Property division including business and investment assets
✔ Settlement negotiations or trial preparation
✔ Post-divorce modifications and enforcement
Reach out today at 813-428-3400 or [email protected] to start moving forward.