Divorce When Not a Citizen?

[desertbloom708]

My jurisdiction is: NY

My friend and her husband are both from another country and have recently obtained their residency (green card). He is abusive, and she wishes to divorce him. She doesn't want the house they co-own. She has been staying with me for the past few days, and I'm worried he will claim abandonment, though she left because he hit her again.

She thinks that because she was married in her home country that she can't obtain a US divorce and must obtain one from her country. But in her country her husband must divorce her; she can't divorce him.

They have both filed their taxes in the US as married, and are registered with the INS as married. Can she proceed with a divorce in New York State? If she gets a divorce will her residency be in danger? (She has never called the cops after his abusive outbursts, much to my chagrin. There is no formal record of him having abused her.)

Any help will be appreciated. He has been lying to her and forcing her to live in fear so long and I really think she has a lot of rights that she doesn't think she has.

 

[jharris352]

Divorce

Jurisdiction over their marriage, regardless of where she was married is where she is currently living. There is probably a 6 month minimum residency requirement in NY, but after that she can file for a divorce. There will be no difference in the divorce because of where they were married. In personum jurisdiction lies in residency not in where the marriage occurred.

Her green card status could be a different matter but I doubt it. She didn't get her green card as a result of the marriage and I doubt she will lose it because of the divorce. I would need a lot more detail to answer that question and I'm not that familiar with immigration law though I got my first wife a green card.

She can file for a "no fault" divorce "irreconcilable differences." If he wants to challenge the divorce she can bring out the abuse. It would be better if their were police reports but "parole" (oral) evidence from friends, neighbors, co-workers, etc can prove the case.

I'll end with the same thing I usually say: GET A LAWYER. These sort of complicated issues are just not a pro se thing.

 

[NY_Shark]

Jurisdiction over their marriage, regardless of where she was married is where she is currently living. There is probably a 6 month minimum residency requirement in NY, but after that she can file for a divorce. There will be no difference in the divorce because of where they were married. In personum jurisdiction lies in residency not in where the marriage occurred.

Her green card status could be a different matter but I doubt it. She didn't get her green card as a result of the marriage and I doubt she will lose it because of the divorce. I would need a lot more detail to answer that question and I'm not that familiar with immigration law though I got my first wife a green card.

She can file for a "no fault" divorce "irreconcilable differences." If he wants to challenge the divorce she can bring out the abuse. It would be better if their were police reports but "parole" (oral) evidence from friends, neighbors, co-workers, etc can prove the case.

I'll end with the same thing I usually say: GET A LAWYER. These sort of complicated issues are just not a pro se thing.

I agree with most of this except:

1. Snowy NY does not have a no fault or an irreconcilable differences option, though the outcome is pretty much the same.
2. The residency requirement is 2 years, not 6 months.

Edit: I did a little research and there is a way to bypass the two year residency requirement. There is no residency requirement for a fault divorce if the fault occurred in NY. The following "faults" are listed:


DRL §170(1) - cruel and inhuman treatment
DRL §170(4) - adultery
DRL §170(2) - abandonment
DRL §170(5) - living apart one year after separation decree or judgment of separation
DRL §170(3) - confinement in prison
DRL §170(6) - living apart one year after execution of a separation agreement

If she can convince the court that one of these is accurate then she can have her divorce now. Otherwise she will have to wait two years.

 

[desertbloom708]

Thank you to all the replies. I'd like to update with what she has found out, in order to help any others who stumble across this thread.
She confirmed with INS that she can not lose her residency as a result of the divorce, and that changing her status with them is an easy and common enough thing. She was surprised at how simple it is with them.
Also, she has confirmed that as a US resident she needs to file for divorce here, and not in her country- just as JHarris352 thought.

Thank you again to all the responses. She has left him for good, I believe, and is starting to build a better life. I'm still trying to get her to get a lawyer, but it looks like he won't contest anything.