For Better, Worse, Or Divorce Podcast

In this episode, Brian Walters meets with immigration and naturalization attorney Wendy Whitt to talk about their experience handling family law cases involving immigration and international issues. Brian and Wendy discuss when a divorce or child custody case can impact a pending immigration status and scenarios where a family law attorney may get an immigration attorney involved in a case as an expert witness. Brian and Wendy close out the episode by answering a few listener questions.

If you have a family law matter you want to speak to an attorney about, schedule a consultation with us or contact Wendy Whitt if you need help with a family immigration matter. If there is a topic you would like to hear on our podcast, email us.

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• Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
• Brian Walters: All right. Well, thanks for tuning into our podcast called For Better, Worse, or Divorce, where we provide you with tips and insights on how to navigate divorce and child custody situations in the state of Texas. I’m Brian Walters, and I’m here today with Wendy Whitt. She’s the founder of Love and Border, also known as Whitt PLLC, an immigration firm. And she’s an immigration attorney in Dallas, although I believe she practices obviously more broadly than that. Her firm specializes in fiancé and spousal visas, family and military immigration issues and naturalization. The family law matters with immigration and international issues are a common topic and subject of litigation at our firm. I turned to Wendy before on this issue prior to this podcast. She and I have known each other for a while and figured it’d be helpful to talk about it with somebody who knows a lot more about those issues than I do, and I thought it’d be helpful to everybody.
• As is common with family law, it actually covers a lot of different areas. And sure enough immigration is that, and certainly in Texas we have like the rest of the United States, but maybe even more so. Plenty of those issues, international and immigration ones. Including having the longest border of any state with another country. So anyway, Wendy, you want to tell us a little bit about your background? Tell us where you grew up, went to school and how you ended up in immigration and related types of law. 
• Wendy Whitt: Sure. I grew up in a rural town in Arkansas, a farming community. I decided I just really wanted to see more of the world and to get out of the small town life. And I went to Cornell Law School, so that’s where I got my law degree. Then after that I joined the US military in the JAG Corps for the Air Force. I joined right before September 11th happened. And they said, we need you now. About 24 hours later, I was getting sworn in as an officer in the Air Force, and I was on my way to training. So, I served four years of active duty throughout the United States and Korea. Then I went back as a reservist a couple of years later, and I served in Washington DC. I served in Iraq during the Operation Iraqi Freedom and the Surge. I was part of that.
• So that really gave me a lot of exposure to different areas, different cultures, and I really enjoyed that. While I was in Iraq as a reservist, I met and fell in love with an Iraqi man who was part of our security detail. And I spent over a year trying to bring him to the United States after I returned from the deployment. It was very tough. There were a lot of ups and downs. I didn’t know that much about immigration when I started doing that, and I had to really learn it on my own as I was afraid really to reach out for.
• So I did it all. And even though that relationship broke up for other reasons, more related to him not being able to leave his country, not immigration, but it really got me into the immigration community, got me learning. And I was encouraged after I left the reserves to start my own practice by some other reservists who were also immigration attorneys in their private lives. So I’ve really learned everything I learned about immigration, I learned for CLE for going to a AILA Conferences and from other immigration attorneys.
• Brian Walters: Yeah, that’s quite the change going from small town Arkansas to the frozen tundra of Cornell, up there in the winter. Very mild summer, not so much in the winter.
• Wendy Whitt: No, we didn’t really get to be there in the summer because that’s when we had to be in New York doing our internships and getting ready for post-grad life. So I only got to see Cornell in the cold dark.
• Brian Walters: And then certainly being in a combat zone in another country and in a very different country is yeah, that’s definitely seeing the world. And a deployment to Korea is not the easiest thing either. So my dad’s military, so I’m a little familiar with this type of thing.
• Wendy Whitt: I love Korea. The country’s great. The food is amazing. The people are really nice. But the truth is that when you’re a US military member, you’re mostly on base. You’re mostly practicing for war with North Korea. It’s not that much fun except when the brief times they let you go into the town to do something.
• Brian Walters: Exactly. And those were unaccompanied tours if I remember correctly at least for the most part. My dad was in a Pacific theater, most of his career as well. So anyway, and then I think you and I ran across each other in a group of other lawyers both in the state of Texas. So, I know we’ve met before for coffee or whatever and at different times about issues that are in both of our areas. So a big difference I think for us is that I’m licensed in the state of Texas and I do family law, which is state specific. So Texas’ rules for a divorce are completely different than California’s, for example. And I can’t practice in California unless I had a license in California. But as I understand it, most of what you do is federal related type of law. Is that correct?
• Wendy Whitt: That’s right, Brian. It’s 100% federal. So I have my license in the state of Tennessee, which is where I worked in between being in the military, my first tour and my second tour. So that’s where I have my license. I don’t do anything related to Texas state law at all. Any Texas state law issues come up, which they do usually in the context of what we’re talking about today is family law issues. So I rely on Texas attorneys like you and other colleagues of mine to answer those questions and handle those matters. But I can represent someone in the United States Immigration Service in any state in the US or if they’re overseas or never even been to the US, I can still help them.
• Brian Walters: So if someone needed help and they lived in San Jose, California, immigration help, they could contact you just as easily as someone in San Jose, as I understand.
• Wendy Whitt: That’s right. And my practice has become even more spread out. Because of COVID, I started doing everything online. All of my consultations are online by Zoom, so I would say that at least half of my clients are outside the state of Texas now. And I see that continuing to grow.
• Brian Walters: Yeah, certainly makes sense. All right. So, when a family law firm like ours would need your help, some examples I could think of would be that a common one we have here. I’m in Houston a lot, and the oil industry is a big deal here, which is very international. And so, Chevron or Exxon will bring up somebody from their Argentina office and they’ll bring their spouse with them and their children, and the spouse is the employee of Exxon, let’s say it’s the husband, he’s here on a work visa. The rest of the family’s here on basically a visa that says, you can be here because your husband’s allowed to work here, but you’re basically tied to your husband’s work status. And when his work ends, they would go back to Argentina. The US visa, the work visa would end. However, if they decide to get divorced in the middle of him being stationed in Houston with Exxon for example, that’s a problem.
• And this is a real-life case, but I’ve had several variations on the same thing. The second they’re divorced, her visa, which is tied to her marital status with her husband is going to be generally void because they’re no longer married, and her reason to be in the US ends. And if they have children in particular, that’s a real problem. And generally the kids are, well, their visa is probably tied to their dad. So either she’s got to leave the country in that situation, the United States and go back to Argentina where he’s here in the US working. He really can’t leave his job because he could get fired. And so what do they do? I mean they’re getting divorced. If they didn’t have kids, it wouldn’t be a big deal. But they do have kids in this scenario. So how do we make it so that she doesn’t just get kicked out of the US and the kids are here with him and she doesn’t see her kids again or vice versa. 
• She takes the kids back, and how does he get to see his children on a regular basis? Those are the kind of complex things as an example that we might deal with. And we also deal with situations where people want to stay in the US after they’re divorced, and maybe that’s difficult because they don’t have a status or a reason to be here. It’s actually despite what you see, if you want to be here on TV, if you want to be here legally, it’s actually not that easy as you expressed about the gentleman you met in Iraq. So those are examples of where a family law firm like us might need your help to figure out what do we do? How do we navigate this? How do we get to a resolution that’s helpful or if we can’t resolve it, how do we let the judge know what’s going to happen if they make various rulings? So, what about vice versa where you mentioned it earlier, but in your practice, how would family law potentially impact some of your immigration or naturalization type cases? 
• Wendy Whitt: Right. A few examples I can think of, especially in Texas, I often have to consult with a law attorney to find out if a couple has actually entered a common law marriage. I mean not that many states in the US have common law marriage and it’s very particular, and each state differs. So someone comes to me and says, I am common law married. Well, I’m not a Texas state family law attorney. I don’t know if you are or not. I’ve got to call my colleague, and we have to look at your documents and see, because often the majority of the cases that I handle have to do with benefits for people who are married to US citizens, green card holders or something else like you mentioned. They have non-immigrant status, but they’re allowed to be here.
• So I often have to consult with a family law attorney to figure that out. Often, I’ll have a couple who perhaps everything was going great, the US citizen spouse sponsored the immigrant spouse for a green card and everything was fine, and then suddenly they’re telling me it’s not working out. We’re getting a divorce. What can I do? How can I stay in the United States? And if they’ve been married and had a green card for less than two years, that’s even more complicated because I have to go and prove to the immigration services that that marriage was bonafide from the beginning and that it fell apart for natural reasons.
• I often have to consult a family law attorney to have that handled in the civilian side because we can get really stuck between a rock and a hard place. And the spouses aren’t together, they’re not living together, but they don’t yet have a divorce. And those are the most common times that I consult with a family law attorney, but other little things happen too. Someone will call me about adopting a relative. I don’t handle adoption. Some of these adoptions are actually US state matters, others are international. So I have colleagues in both the family law arena and adoption that help me with those things too.
• Brian Walters: Yeah, that sounds about right. Yeah. The marriage thing is most states have gotten rid of common law marriage. We call it technically informal marriage, which is the same as a marriage. You’re either married or not. It’s just a question of how it occurs. Most states have gotten rid of it, but we’ve retained it for whatever reason. I keep wishing that legislature would get rid of it because it’s just a mess. And it’s usually my view, someone is trying to manipulate the system. So it’s quite the thing.
• Wendy Whitt: It’s complex. And the immigration service doesn’t have, they don’t know how to handle it. Another thing that I see that I think surprises people that I see this so much is clients come to me, and I start asking them, I need all of your divorce certificates for all your previous marriages. And this is a common requirement often. No matter what type of visa you’re applying for, we have to provide these documents. And I’ll find out that this person never really got a divorce from the other spouse. And then we have to consult with a family law attorney like you about can we get this marriage annulled? Does he have to go back and get a divorce? Do we have to remarry previous spouse? Who’s he actually married to? It’s complicated.
• Brian Walters: Very good. Yeah, I get those calls and I think a lot of them are immigration based of, yeah, my wife and I have been separated for 20 years. We haven’t seen each other in 20 years. That means we’re divorced, right? I was like, not really.
• Wendy Whitt: Right. I’ll have clients hand me something and they’ll say, well, my wife said she filed it in court. I signed it. But there’s no stamp from the court. There’s no evidence. And we call the court, and they’ve never seen this before. It didn’t exist.
• Brian Walters: Exactly. Or it’s in another country that could be in a war zone or difficult to get accurate documents from? There’s a lot of variations.
• Wendy Whitt: That’s right. I do have to consult a lot of international divorce practitioners as well just to figure things out. Especially in Middle Eastern countries where the divorce procedures, there’s different types of divorce. It’s who I divorce you, I divorce you. That might turn into a divorce or it might not. Sometimes I’ll have clients with more than one spouse. You can’t bring more than one spouse to the United States, and that’s a difficult puzzle to unravel too. And we need help often from both US and family law attorneys and an international family law attorney in the country where the marriage took place to figure out how to approach that situation.
• Brian Walters: Or Lebanon, which your marriage depends on. You choose basically what generally a religious thing rather than civil thing. And depending on if you’re Orthodox or Muslim or whatever. Jewish, whatever it is, you have to then go through their own church basically court systems, if you’re Orthodox. I’ve dealt with some of those. Quite the thing. Although amazing number of these countries actually conduct legal business in English, even though you wouldn’t think they would. But it is the international language in a lot of ways. So anyway. No, I agree. There’s certainly lots of those kind of things and they do intersect quite a bit. And I think that’s a bit of a surprise to people like, well, I married an American, I’ve been over here with them for two years. We’re getting divorced, whatever, it happens, but I get to stay in the US. I’m a US citizen, right? It’s automatic. And I assume that’s not the case necessarily. There’s nothing automatic about it. Am I right? 
• Wendy Whitt: That’s absolutely correct. There’s nothing automatic. If you marry a US citizen, whether you get married to them inside the United States or in another country, that changes nothing about your immigration status.
• Brian Walters: So we talked a little bit about divorce, kind of touched on the child custody thing. So let’s talk about that. So, it’s sort of the same thing I think we can establish if somebody marries, they’re American, it used to be more common, I think maybe less common these days, but in Russia there seemed to be a particularly high number of American oil folks who would go over there and come back with a Russian wife. And they’d either bring the child, maybe the Russian wife had a child from a prior marriage, or they had a child in Russia. And the child comes over to Texas, been here a couple of years, they get divorced. Now does the child have any particular claim to stay in the US or is it the same as the mom? I mean I guess it’s really two scenarios. One’s a child of the marriage and one’s not. How would that work? Does a child get to stay or is it just kind of no, you’re not anything special just because you are a child of somebody married to an American.
• Wendy Whitt: So child citizenship is incredibly complicated. It’s actually more complicated than spouse citizenship, and I can explain that. But let’s start with your scenario. And this is a child that was not born to the US citizen, so it’s not a biological child of a US citizen. In that case, as long as the child is under 18 and unmarried themselves, they’re usually going to come over as a stepchild of the US citizen. So they basically have the same. Marriage has lasted for less than two years, they have that same conditional status as a parent. So when the parent goes to remove their conditions and proceed with getting a green card to stay in the United States after the divorce, the child will basically be a rider on that petition usually.
• When it gets more complex is when a child would not maybe come in with a spouse but be added on later. They might have a completely separate case that has to be dealt with separately or they might be too old to come immediately and they have a petition. Then the mother’s fee, a parent who had a blended family with a foreign national spouse, a foreign national child, they’re all getting divorced. If they’ve been in the US less than two years, we’re going down that remove the conditions route. If they have been in longer, they may be able to secure status on their own just based on having a green card for long enough.
• Brian Walters: Okay. You mentioned twice now something about two years, whether they’ve been two years in the US or not. So is there some legal significance for that?
• Wendy Whitt: It’s a big change. And it really impacts people’s rights, especially if they’re getting a divorce. So if someone comes to me and says, I got my green card for marriage to my US citizen spouse, and now we’re getting divorced. The first thing I ask them is, how long have you been married and when did you get your green card? So, if it turns out that they’ve had this green card for less than two years, and I look at it, and it will say on there ‘conditional’. You’ll know by looking at the green card, it’ll say two year conditional green card, cannot be renewed or extended. So there’s an entire legal process we go through. It’s much easier if you’re still married and your spouse is part of the petition, but we can totally proceed down that path alone through divorce. I just have to carefully document that this marriage was valid, it was bonafide, it was not immigration purposes, and this can take a long time.
• Sometimes we’ll find out the spouse was abused by the US citizen spouse, and there is a separate process for that usually. And sometimes we could proceed even if they never had a green card. Perhaps, often what you’ll see in an abusive relationship is the citizen spouse will not sponsor or will withdraw a petition before the divorce. And they’ll threaten. They’ll say, I’m going to get you deported, so we’re going to get divorced. I’m withdrawing my petition, or I’m not filing this petition. We’re going to get a divorce, and you’re going to get kicked out of the country. In that case, we call it VAWA, Violence Against Women Act. But I actually do more cases for men than for women. It applies to everyone, even children. And that’s a way that we can help people keep their status or obtain status in US even for a divorce, if there was some kind of abuse. It has to be serious abuse. It can’t just be they were mean to me. They were cranky. But it doesn’t have to be physical violence, which a lot of people think it does, but it actually doesn’t.
• Brian Walters: Interesting. Yeah, because I used to get, now that I think about it, I don’t get that specific call that often. I used to get the one, it’s usually, she left me the day the green card came in the mail. Probably does indicate your marriage wasn’t going that well. And I can see why now the two-year rule would make a lot of sense because that does sound pretty fishy. I mean maybe it wasn’t the next day, but it’d be like right away or soon after. Yeah, I mean it’s important, especially if you’re from a place that you really don’t want to be there, and you don’t want to go back for whatever reason. And totally understand it. It’s not like someone going back to Canada. They might be like, whatever, I’ll go back to Canada. But if you go back to a war zone or a place where having been married previously, was a big problem.
• I can think of several countries or cultures that would be an issue. It might not be a good choice to go back. Okay. So I guess the question I get is what if a court’s faced with that? What if a court is faced with a situation where, let’s say again, dad’s here with Exxon, he’s got three more years on his contract. Mom’s, when they get divorced, is going to be booted out of the country and have to go back to Argentina. What are we going to do with the kids? What does a family court judge do about that? Well, I mean they apply the same rule they do for everything, which is they’re going to try to act in the best interest of the children. What does that mean? That’s the real question. Most people use common sense about that. I mean, in that particular case, that’s a really hard one because moms in another country soon to be back in Argentina and cannot come to the US or at least would be difficult for them to come to the US for any lengthy period of time.
• But dad’s got a job and it’s his career, and that’s his pension he’s trying to earn and all of that kind of thing. So all those things are really important, and the court’s going to have to weigh all of those things. So those are hard cases, I will say. And generally we’ve found out a way in mediation to settle them. Because if you go to a court, you put your future of yourself and your kids in the hands of a judge who’s going to do their best but doesn’t know that much about you. And in some ways, these Texas family court judges have their hands tied. The federal law that’s for immigration trumps whatever the family court says. The divorce court can’t say, you get to stay in the US, ma’am, you don’t have to go back to Argentina. The federal court’s going to ignore that. Who cares? Here’s what Texas says, it’s federal law. We have the hydrogen bomb and Texas does not.
• Wendy Whitt: Right. And Brian, something that I’ve seen related to this is while the judge can’t really say, I am not giving you custody because you have no immigration status, I think that would be really problematic on appeal for them to put it that way. But the practical reality is when it comes down to proving who is going to actually be in the best interest of the child, a person without legal status, whether they were in a non-immigrant status like you explained, and that’s being cut off or maybe they’ve been here 20 years, they’ve just never had status. They were brought here as a kid. They’ve got nothing but they live here. But the practical reality is it can be tough to prove that you are the more stable parent. You maybe don’t have a driver’s license. If you get pulled over driving the kids in the car and get detained by the immigration services, I mean, opposing council’s going to have a field day. You may not have the most stable job because you can only get paid in cash because you have no social security card.
• These are really tough cases, and I think counsel like you could be really creative, can really help people in that situation where sometimes immigration, sometimes there is no immigration solution to your immigration problem. I mean, that’s the hardest lesson I had to learn when I first started as an immigration attorney is people would come to me, and sometimes there’s just nothing we can do if you don’t fit in.
• Brian Walters: And I think it depends a lot on, again, in this scenario, if both of the parents are committed to co-parenting after their divorce, there’s usually a way to do it. One of these cases, for example, turned out mom wanted to go to college and finish her degree. So, we just had her basically go back to Argentina and come back the next day as a student at the University of Houston. And dad paid for it. Her ex-husband paid for the college, and that way she could still be in Houston. He essentially asked Exxon to basically cut a year of his time in Houston so he could go back to Argentina earlier, but not get in trouble and not lose his job. And where everybody worked that out but that took both of them determining that they wanted to work together and maybe make sacrifices.
• I think he would’ve preferred to stay here in the US long term. I think she probably would’ve preferred to go to college somewhere else, but they managed to make it work. All right. So we have some common questions that come up in these things when we have questions from folks. One of them is, can I file for a divorce if I’m not in Texas? If I’m not a US citizen? Yes. In fact, I get a variation on that question is, “Hey, I was married in New York. Do I have to file for a divorce in New York?” No, it doesn’t matter. In Texas it matters. And it’s this way basically in every state is whatever state you’re living in is where you would file for divorce. That can get complicated if you live in different states or someone’s overseas for the State Department of the military, there’s some complex questions and rules about that.
• But generally for 99% of the people you just file in Texas, and you don’t have to be a US citizen, you don’t have to have been married in Texas. So just in case people want to know that, that’s the situation. I think that is different in other countries. But that’s essentially the same across all US states. Another common question we get is, what can Texas courts do if the other parent who’s not a US citizen takes a child overseas? So that’s a very interesting question, and that’s kind of a whole podcast by itself. I’m assuming this question is about if they’re taking the child overseas without their approval or agreement. And there’s something courts can do in Texas, but honestly the Texas courts, if you take a child to another country, you’re going to ultimately have to litigate that issue in the other country. You can get a Texas court to say, if the court had jurisdiction, you have custody, you should have the child, the other parent should give the child back.
• Now all you got is a piece of paper. And then there is a procedure that the United States has in agreements with some other countries to return children in that situation. But there’s two big ifs around that. One is that, is the country a signatory to that agreement? Many of them are not including some of the largest countries in the world. And number two, even if they are, does their legal system work? And I guess even thirdly, it’s expensive. Even if a person takes a child illegally to a country like Germany, which has a functioning legal system and it is a signatory to this, you’re going to have to hire a German attorney and litigate it in Germany. And you’re going to have to have a Texas attorney to get the underlying order. So now you’ve got two sets of lawyers all across the world, and financially that’s going to be extraordinarily expensive.
• And there’s a lot of people that just can’t afford it. And sadly, that’s what happens a lot of the times is if a child does get taken by another parent to another country, the parent never sees them again. It’s really sad. And of course, the courts here try to protect against that, and you can ask a court if you’re worried about that in Texas, to not let the other parent have the child or take the passport away, although none of that stuff is a guarantee. So it can be pretty scary stuff for sure. So how about immigration resources for folks either in Texas or otherwise? Would they go to your website? Would they contact you? How would they learn more if they have questions about immigration from you, Wendy?
• Wendy Whitt: Sure. I encourage them to visit my website. That’s loveandborder.com. I have blog posts. I have question and answers. I am working to get my videos that I’ve made posted there too. They could also schedule a consultation with me on the website, and find links to sign up for my email newsletter and the other events. I typically do a weekly Q and A on Facebook Live. Right now that’s where it is. And I’ll load that information. It can be found on my website.
• Brian Walters: Okay, great. Well, that’s all we have for today. If you like what you heard today, do us a favor and leave a review. We appreciate all your feedback, especially since it helps us better the podcast. If you’d like to reach out to Wendy directly, as you heard her say, we’ll have her contact information listed in the description. I can’t thank you enough, Wendy, for joining us today, and I will be back soon with another episode.
• For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.