Divorce, custody and VAWA
A divorce does not end your VAWA case. Divorce after you file does not affect the petition, and a former spouse can still file within 2 years after the marriage ended if the end of the marriage was connected to the abuse. Family court runs on state law and is not covered by VAWA confidentiality, so the two cases have to be planned together.
Current as of October 2026. We re-check this page every quarter and after any change in the law.
Divorce and custody are family court cases, decided under state law. A VAWA self-petition is a federal immigration filing, decided by USCIS. They run on different rules, in different places, but what happens in one can affect the other. Usher Law Group handles both, which means the two can be planned in the same office. This page covers the immigration side. For the family court side, see the card at the end.
The immigration rules on divorce and remarriage
| What happens | Effect on the self-petition | Authority |
|---|---|---|
| You divorce after filing | No effect on the petition | 8 C.F.R. 204.2(c)(1)(ii) |
| You are already divorced | You may file within 2 years after the marriage ended, if the end of the marriage was connected to the battery or extreme cruelty | INA 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc); 204(a)(1)(B)(ii)(II)(aa)(CC)(bbb) |
| You remarry before approval | A basis for denial | 8 C.F.R. 204.2(c)(1)(ii) |
| You remarry after approval | Not a basis for revocation | INA 204(h) |
The 2-year window is a hard limit. If your divorce is final or close to final, do not wait to speak with a lawyer. See the former spouse 2-year rule and divorce, remarriage and your case.
Children and custody
- Your children can be on your petition. A spouse's children may be included as derivatives, whether or not they were abused, under INA 204(a)(1)(A)(iii) and (B)(ii) and 8 C.F.R. 204.2(c)(4). See children on your petition.
- Abuse of your child counts. The self-petition's abuse element can be met if you or your child were battered or subjected to extreme cruelty by your spouse during the marriage, under INA 204(a)(1)(A)(iii) and (B)(ii).
- Custody is decided by the family court. The immigration case does not decide who has the children. A threat that you will lose them because of your status is something to raise with your family lawyer, not to accept as true.
Why the family case is not covered by VAWA confidentiality
Under 8 U.S.C. 1367, the federal immigration agencies may not disclose information about your VAWA case. In the firm's reading, the statute does not bind a state family court. In a divorce or custody case, the abuser's lawyer may ask about your immigration status, request financial or personal records, or question you under oath. What is said or filed there can reach the abuser. See confidentiality.
That is not a reason to avoid family court. It is a reason to decide, before the family case starts or before the next hearing, what will be said about immigration and by whom.
After the green card
A person who obtained permanent residence as the battered spouse or child of a U.S. citizen may apply to naturalize after 3 years, without the marital-union requirement, under INA 319(a). See citizenship after VAWA.
If the family case includes a criminal charge against you, talk to your criminal lawyer before you write anything down. Read arrested or charged.
Read next: the former spouse 2-year rule, children on your petition, protective orders, or confidentiality.
Common questions
If we divorce, is my VAWA petition cancelled?
No. Under 8 C.F.R. 204.2(c)(1)(ii), divorce after the self-petition is filed does not affect it. If you are already divorced, you may still file within 2 years after the marriage ended if there is a connection between the end of the marriage and the battery or extreme cruelty, under INA 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc) for spouses of citizens and the parallel provision for spouses of permanent residents.
Can I remarry while my VAWA case is pending?
Remarriage before the self-petition is approved is a basis for denial under 8 C.F.R. 204.2(c)(1)(ii). Remarriage after approval is not a basis for revoking it, under INA 204(h). If you are thinking about remarrying, talk to your immigration lawyer about timing first.
Will the family court judge see my VAWA papers?
Only if they come into the family case. In the firm's reading, 8 U.S.C. 1367 binds the federal immigration agencies, not a state family court. If your immigration case is raised in a custody or divorce case, the other side may see what is filed there. Your family lawyer and your immigration lawyer should decide together what, if anything, is said.
Can my children be on my petition?
Yes. A spouse's children may be included as derivatives on the self-petition, whether or not they were abused, under INA 204(a)(1)(A)(iii) and (B)(ii) and 8 C.F.R. 204.2(c)(4). Custody is decided separately, by the family court.
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