What rights do I have as an immigrant in Virginia divorce?

Posted on Jan 23, 2017 by Katie Carter

Many marriages involve a move. For some, it’s a little move—maybe, possibly, even just a short drive away. For others, it involves a move to a totally different state. For still others, it involves a move to a totally different country. We’ve seen marriages between couples from all over the world, whether they’ve both immigrated to the United States for one reason or another, or whether one partner was already an American citizen, and, for the most part, they’re pretty straightforward.
Oftentimes, though, I find that the wife, especially if she’s an immigrant, really has no idea what her rights are in Virginia. She’s usually under the impression that things will be similar to the way they are in her original country. In some cases, that’s the case; in other cases, though, it couldn’t be further from the truth. It’s important, especially as an immigrant, to make sure that you understand the laws that apply to your case so that you’re not tempted to settle for less than what the law allows.
What we often see in these cases is that the American husband is all too willing to use his familiarity with the country and the Commonwealth to his advantage. He’ll tell his wife all sorts of things that aren’t true and, often, she just accepts what he says is true. (Of course, this happens in marriages where both spouses are American citizens, too, it’s just more pronounced in cases where one has immigrated here.) If there’s a language barrier, the problems often escalate even further. The wife feels she has to get her information from her husband, because talking to someone else is too difficult given that most don’t speak her native tongue, find her accent too difficult to understand, or the level of fluency required to have a complicated discussion of legal principles really isn’t there.
For immigrant spouses, divorce is extra terrifying. It’s always scary, but when you combine it with an unfamiliarity with laws, customs, and languages, it’s even worse.
You should know, though, that you do have rights. You’re a wife, and you deserve your marital share. If you have children, too, you also have rights—after all, you’re their mother! I don’t care how it is in the country where you came from—in the United States, and in the Commonwealth of Virginia, you have rights, and you shouldn’t let your husband tell you otherwise.

What are my rights in Virginia as an immigrant spouse?

Immigrant or not, you have rights. I know I’ve said that before, but, in many cases, we have to tell our clients the same thing over and over. Whatever he says, he can’t just ship you off and make sure that you never see you children again. He can’t refuse to give you anything from the marriage (unless, of course, you sign something that results in your being given nothing—don’t do that!).

You have rights. What are your rights in divorce?

1. You have a right to your marital share of the assets.

Whatever your assets are, whether it’s a retirement account, a home, a car, or anything else you may have purchased or acquired during the marriage, you have an interest in it.
How much you’ll receive depends on whether you’re able to reach an agreement or whether a judge awards you your portion but, either way, you’re probably looking at something fairly close to a 50/50 split of the marital assets. It’s not 50% of everything he has, of course—anything that he earned, purchased, or acquired prior to marriage is separate property, and will go with him when he leaves (likewise, anything that you brought into the marriage, you take with you when you go).
The only exception is property that is both marital and separate. Take a home for example. Say he bought it prior to marriage. He made a down payment on it, and he paid mortgage payments before you were married. Then, you got married, and he continued to make mortgage payments. Once you marry, his income becomes a marital asset (you don’t have to physically earn the money in order to have a share in what he earns), so any payments he makes towards the house are made by you, too. The law views marriage as a partnership, so you’re both making payments—even if the money technically comes exclusively from his paycheck.
The house becomes a hybrid asset at that point, because it’s part marital and part separate. How much is marital and how much is separate depends on the math involved; obviously, if he owned it for 15 years prior to your 2 year marriage, your interest may be very small. On the other hand, if he purchased it a month before your marriage, and you were married for thirty years, plus you put a bunch of money into an addition and some great renovations, you have a much, much larger interest. It may sound complicated, but we do this kind of math all the time.
It works the same way with retirement accounts, if he invested in a 401(k) or earned a pension prior to your marriage. You don’t have a share in what was earned before you were married (unless he signs something giving you a share of the non marital portion), but you will have an interest in everything that was earned AFTER you were married.
Your share is roughly 50% of what was earned during the marriage. And that applies to everything you earned, purchased, or acquired after marriage and before separation.

2. You have a right to your children.

Whether you’re an American citizen or not, the court isn’t going to take custody away from you and give it to the child’s father. You have a right to your children.
Custody can be handled a couple of different ways; you can have it determined in the juvenile court, reach a written agreement regarding custody, or, alternatively, let the judge decide in the circuit court. Either way, though, you’ll have an equal chance to argue for the arrangement you think is in the best interests of your children. That’s not a guarantee that you will win; in Virginia, there’s no preference for the mother over the father. But there’s also no preference for him, just because he’s American, over you. The judge will make a decision based on what’s in the best interests of the child, or you and your husband will ultimately reach your own agreement—it’s up to you and what works best.
There’s a lot you should know about how custody works, including the vocabulary of custody, so that you know what you want to ask the court to do (or ask your lawyer to add to the language of your agreement)—but that’s a little bit beyond the scope of this article. Still, I’ve provided extra links here to help make sure you can get the information that you need and, if you want more, you can request a copy of our free e-book, “The Women’s Custody Survival Guide” by clicking here. (We’ll send you an e-book version and, if you live in our area, you’ll also have the option to have a hard copy sent to your house—or a friend or relative’s house or even your place of employment, if that’s safer—if you want.)
You should know, though, that he won’t just able to take your kids away from you and never let you see them again. American citizen or no, you’re still their mother, and our courts value that.

3. You have a right to a divorce.

Whether it’s you or he who wants the divorce, you’ll be able to get it. If the other party opposes a divorce action, that can make things more difficult—but it won’t stop the process entirely. He can’t force you to stay in a marriage that is unhappy or unfulfilling—or worse, abusive. Whatever he says, he can’t force you to stay.
He also can’t force you out of the country. More on that later, though. (See the next section for details.)
You don’t, though, have a right to have an attorney appointed for you. We only have court appointed attorneys in criminal cases; divorce is civil (which is a category of case that just means “not criminal”) and there’s no legal entitlement to representation in a civil lawsuit. You’ll have to hire an attorney, if you want one to represent you, on your own.

What about my citizenship application? Will I be deported because of my divorce? What should I do to make sure I can remain in the United States?

He can’t make you leave on his own; it’s not his decision. Immigration issues, though, are fairly complicated, and if you’re worried about your citizenship status, your green card application, or other issue, you’ll want to talk to an immigration attorney.
I have a good friend who is also an immigration attorney. Her name is Radlyn Mendoza, and she’s the daughter of Filipino immigrants—so she understands where you’re coming from and the concerns that you have. To reach out to her or schedule a consultation, feel free to visit her website.
I’d give you more help if I could, but, like I said, immigration is pretty complicated, and I don’t pretend to have all the answers. You’ll want to talk to an attorney experienced in handling these issues to make sure that you can stay (or go, if that’s what you prefer) when the time comes.
For more information about divorce as an immigrant spouse, feel free to give our office a call at (757) 425-5200.