Understanding Immigration and Divorce in the Context of Florida Law
Navigating the intersection of immigration status and divorce can be daunting—especially for individuals whose lawful permanent residency in the United States hinges on their marriage to a U.S. citizen or green card holder. If your marriage is ending while your green card application is pending, or if you’re in the conditional residency phase, you may be asking the critical question: Can you still get a green card if you divorce in Florida?
The answer depends heavily on your current immigration status, the type of green card application filed, how long you’ve been married, and whether the relationship was genuine. While a divorce does not automatically disqualify you from obtaining permanent residency, it can complicate your case significantly. Knowing how Florida divorce law interacts with federal immigration regulations is key to protecting your future.
A knowledgeable Tampa divorce lawyer can help you understand the state-level legal implications of your divorce while coordinating with immigration counsel to protect your residency status.
Green Card Through Marriage: A Two-Step Process
When a non-citizen marries a U.S. citizen or lawful permanent resident, they can apply for lawful permanent residency (a green card) through a family-based petition. This process typically has two main stages:
- Adjustment of Status or Consular Processing
After the I-130 petition is approved, the foreign spouse applies to adjust their status (if already in the U.S.) or go through consular processing (if abroad) to obtain a green card. - Conditional Permanent Residency (if married less than two years)
If the marriage is less than two years old at the time permanent residency is granted, the non-citizen receives a two-year conditional green card. This status requires the couple to file a joint I-751 petition to remove conditions before the card expires.
If the couple divorces before the I-751 is approved—or before the green card is issued—the applicant must request a waiver and prove the marriage was bona fide.
A Tampa divorce lawyer who understands the stakes of a divorce involving immigration status can help preserve the necessary documentation and marital history for future USCIS review.
What Happens if You Divorce Before Getting a Green Card?
If your green card has not yet been issued and you divorce before USCIS finalizes the adjustment of status, your application may be denied. This is especially likely if:
- Your I-130 petition is still pending and your spouse withdraws it
- You are applying based on a K-1 fiancé visa and the marriage never occurred
- USCIS concludes the marriage was entered into for immigration purposes
However, if you can demonstrate that your marriage was genuine and not fraudulent—even if short-lived—you may still be eligible for certain immigration waivers or categories.
Tampa divorce lawyers often work alongside immigration attorneys to ensure that a valid marital history is documented and protected in court pleadings, testimony, and settlement agreements.
Divorce After Receiving a Conditional Green Card
If you are already a conditional permanent resident at the time of divorce, you will need to file Form I-751 with a waiver of the joint filing requirement. This waiver must prove that:
- The marriage was entered into in good faith
- The marriage was not for the purpose of evading immigration laws
- The divorce or annulment is final or in process (depending on the timing)
- You would suffer extreme hardship if removed from the U.S. (optional in some waiver cases)
Evidence to support your I-751 waiver may include:
- Joint financial records (bank accounts, tax returns)
- Lease or mortgage agreements in both names
- Photos, letters, or emails showing a genuine relationship
- Birth certificates of children from the marriage
- Insurance policies listing each other as beneficiaries
A Tampa divorce lawyer can ensure that divorce pleadings and financial disclosures are consistent with the documentation you’ll need to file a successful I-751 waiver.
Divorce After Receiving a Permanent (10-Year) Green Card
If you already have a 10-year green card at the time of divorce, your legal permanent residency is generally secure. You are not required to take additional steps unless:
- You wish to apply for U.S. citizenship (naturalization)
- You want to sponsor another spouse for immigration in the future
If you apply for citizenship after a short marriage that ends in divorce, USCIS may review your immigration history for signs of marriage fraud. For this reason, it is important to preserve records showing the legitimacy of the relationship.
A Tampa divorce lawyer can help ensure that the divorce settlement, affidavits, and case materials reflect a bona fide marital relationship, protecting your future immigration goals.
Can You File Form I-751 Without a Final Divorce Decree?
If you are still legally married but separated—or your divorce is pending at the time your conditional green card expires—you can file Form I-751 with a request for a waiver based on good faith marriage and pending divorce. You must include:
- Proof that divorce proceedings have been initiated
- A written explanation of the current marital status
- Evidence of your efforts to obtain a divorce decree
USCIS may issue a Request for Evidence (RFE) asking for the final divorce judgment before they make a decision. You must respond with the final decree within the specified timeframe or risk denial.
A Tampa divorce lawyer can help expedite the divorce process or provide certified documentation that satisfies immigration officials.
Can You Still Adjust Status Through Another Category After Divorce?
Yes. If you divorce your U.S. citizen or permanent resident spouse before receiving a green card, you may still be eligible for permanent residency under another category. These include:
- VAWA (Violence Against Women Act) self-petition: If you were abused by your spouse, you may self-petition for a green card independently of the marriage.
- U Visa: If you were the victim of a qualifying crime and cooperated with law enforcement, you may be eligible for a U visa.
- Employment-based sponsorship: If you qualify for a work-based green card through an employer.
- Asylum or humanitarian relief: If you fear persecution in your home country.
A Tampa divorce lawyer can support your claim by documenting abuse, cooperating with investigators, or providing affidavits of good faith marriage if required in the parallel immigration petition.
Can Divorce Affect Naturalization or Citizenship?
If you already have a 10-year green card and are applying for naturalization (Form N-400), divorce may affect your eligibility in specific situations:
- Three-Year Rule: You may apply for citizenship after three years of permanent residency if you have been married to and living with a U.S. citizen during that time. Divorce disqualifies you from this expedited timeline.
- Good Moral Character Review: USCIS may scrutinize your marital history to assess whether you entered the marriage in good faith. They may deny naturalization if they find inconsistencies or indicators of fraud.
A Tampa divorce lawyer can ensure your legal filings and court records reflect a legitimate marriage and no bad faith, helping to protect your naturalization application.
Evidence That Supports a Good-Faith Marriage
Whether you are seeking to remove conditions on residency, applying for a new green card after divorce, or defending your naturalization application, you must provide compelling evidence that your marriage was genuine. This may include:
- Wedding invitations, photos, or videos
- Evidence of shared residence (leases, bills, mail)
- Joint tax returns
- Joint insurance, retirement, or banking accounts
- Children’s birth certificates
- Statements from family or friends confirming the marriage
- Correspondence showing day-to-day married life
Tampa divorce lawyers often help clients organize and preserve these records during dissolution proceedings, ensuring consistency with immigration filings.
Red Flags That Trigger Immigration Scrutiny After Divorce
Divorcing while your green card is pending or during conditional residency increases the likelihood of an interview or request for evidence. USCIS pays close attention to red flags such as:
- Extremely short duration of marriage
- Lack of joint financial documentation
- No children from the marriage (though not required)
- Conflicting accounts of how the couple met or lived
- Marriage shortly after one party entered the U.S.
- A spouse filing multiple marriage-based petitions over time
If any of these apply to your situation, it is critical to have a Tampa divorce lawyer and an immigration attorney work collaboratively to present a unified and truthful account of the marriage.
Divorce and Immigrant Spouses’ Legal Rights in Florida
In a Florida divorce, immigrant spouses have the same legal rights as U.S. citizens in matters of:
- Equitable distribution of marital assets
- Alimony or spousal support
- Parental responsibility and time-sharing
- Child support
Your immigration status does not affect your right to seek these remedies in court. If your spouse attempts to use your immigration status to gain leverage—for example, threatening to report you to ICE or withdraw a petition—this can constitute coercive control or abuse and may trigger legal protections under state and federal law.
A Tampa divorce lawyer can file motions to protect your rights and, where applicable, help document abuse for immigration purposes.
Can a Spouse Withdraw a Petition to Jeopardize Your Status?
Yes. If your spouse files an I-130 petition on your behalf and later withdraws it before USCIS issues a green card, your application may be denied. However, if you already have conditional or permanent residency, they cannot retroactively revoke your status.
Even if a spouse tries to sabotage your case, you may be able to proceed with:
- A waiver-based I-751 petition (if conditional resident)
- A self-petition under VAWA
- A new petition through another qualifying family member or employer
A Tampa divorce lawyer can help you understand what role your spouse’s actions play in your case and coordinate with immigration counsel to protect your rights.
How Divorce Settlements Affect Immigration Proceedings
Though immigration agencies focus on the marital relationship, divorce judgments and settlement agreements can either help or hurt your credibility. Consider the following:
- Mutual alimony waivers may contradict a claim of financial dependence if you are requesting a waiver based on hardship.
- Aggressive claims of fraud or coercion by one spouse in divorce filings can cause immigration officials to question the bona fides of the marriage.
- Joint statements in the settlement acknowledging a genuine relationship can support your waiver or green card application.
A Tampa divorce lawyer can help draft divorce pleadings, financial affidavits, and settlement terms that align with your immigration goals.
Frequently Asked Questions
Can I stay in the U.S. if I divorce my spouse before my green card is approved?
If your I-130 is still pending and your spouse withdraws it, your application will likely be denied. However, you may still be eligible for a green card under another category.
Can I get a green card if my marriage was real but short?
Yes. You must prove the marriage was entered in good faith. Duration alone doesn’t disqualify you, but you may need to apply for a waiver if you’re already a conditional resident.
What if my ex-spouse refuses to cooperate with immigration forms?
If you’re a conditional resident, you can file Form I-751 with a waiver. You do not need your ex’s signature if you’re divorced or the divorce is in progress.
Can I be deported after divorce if I don’t have a green card yet?
Possibly. If your immigration status depended on a pending I-130 and you no longer have a basis for permanent residency, removal proceedings may begin. Seek legal counsel immediately.
Does it help my case if we have kids together?
Yes. Shared children are strong evidence of a bona fide marriage. Include birth certificates and documentation of co-parenting in your immigration file.
What if I was abused during the marriage?
You may be eligible for a VAWA self-petition. You do not need your spouse’s involvement and can still pursue permanent residency.
Can a divorce delay my citizenship?
It may. If you were applying under the three-year rule for spouses of U.S. citizens, you’ll now need to wait five years unless another category applies.
Is there a deadline for filing the I-751 after divorce?
You must file before your conditional green card expires. If you’re still married, file jointly. If divorced, file with a waiver and include proof of your divorce.
Will USCIS deny my green card just because I got divorced?
Not if you can prove the marriage was real and you meet other eligibility criteria. Divorce complicates the process but doesn’t make approval impossible.
Should I mention my immigration status in the divorce?
It depends. A Tampa divorce lawyer can help you decide whether to address immigration status directly and ensure consistency with your future USCIS filings.
The McKinney Law Group: Uncontested Divorce Services That Put Tampa Clients First
We make uncontested divorce straightforward and efficient—without sacrificing legal accuracy. Our Tampa attorneys ensure your agreement is properly documented and enforceable under Florida law.
Contact us today at 813-428-3400 or email [email protected].