Legal Question in Family Law in Washington

Re: Divorcing an illegal alien

Immigration is not a state law problem it is federal, and divorce is a state issue.

In my experience, the State will not prosecute people for immigration violations, but I hear from other lawyers that is changing. People with undocumented status showing up for family law hearings and being taken into custody.

There are also issues with getting married for immigration status purposes - there may be liability for you as well.

I'm not going to advise you one way or the other, except to say that it would be a good idea to have a consult with a local attorney who practices family law and has a grasp of your county's current immigration practices as well.

WA doesn't call it custody, WA calls it primary residential placement. There is a statute that spells out which parent is more likely to be named primary residential parent. However, both parents have rights related to the child unless or until a court says otherwise. So, start from the position that both of you will have time with your child.

I hope this helps. My intent is to share that there is more to your issue than simply filing for divorce and expecting to be named primary residential parent, and that you really need counsel, even if just for a short consult.

Elizabeth Powell

Re: Divorcing an illegal alien

I normally do not add to what Elizabeth Powell has to say, because her knowledge of family law is much more thorough than mine.

I do have some knowledge of immigration law, however. I would suggest that you consult an immigration attorney even before consulting a family law attorney. If your sole purpose for getting married was to assist your husband to get a visa, you are in violation of the Marriage Fraud Act, and so is he. However, the immigration officers generally see the birth of a child as persuasive evidence of a marriage that is "for real", not fraudulent, and it suggests to me that your original motives might have been more appropriate and legal than you now want to believe.

As a side comment, you should not be frustrated with your husband and his family for failing to sort out their immigration status. If the basis of a visa application is marriage to a US citizen, the alien can take no steps toward applying for permanent residence (and after the required number of years, citizenship) until the U.S. citizen petitions. If you never petitioned for him, his hands were tied.

If the marriage is irretrievably broken, I encourage you to speak with an immigration attorney first, then a family law attorney. (The immigration attorney might be able to suggest one that understands the particular issues you are facing.)