Marriage go round

Although people come to us with a great variety of immigration related issues, the most common request for our help is a green card based on marriage to a U.S. citizen. Of course, not all of these are first marriages. So, today we want to discuss problems that arise with respect to former marriages when aliens seek to adjust status based on marriage to a U.S. citizen.

The basic rule is that both parties must be free to marry at the time of the marriage in order for the marriage to be valid. It does not matter if the Saipan Mayor’s Office, or any other CNMI government office issued a marriage certificate. USCIS will scrutinize each and every former marriage by either party, and make its own determination whether the parties were free to marry. Unless each former marriage was terminated by annulment, divorce, or death, USCIS will not deem the marriage valid. There is an exception for some applications based on the Violence Against Women Act, where the abuser has concealed from the victim a former, undissolved marriage. There may be an exception for former marriages by the same parties. Regardless, whether an exception is available, the application cannot go forward until prior marriage issues are resolved.

[B]U.S. citizen spouse with prior marriage(s)[/B]

If the U.S. citizen spouse has been married before, you will need to present a certified copy of a final divorce decree or death certificate. If the U.S. citizen spouse has been married more than once, you will need to obtain termination documents for each prior marriage: divorce, annulment or death, as the case may be. An interlocutory decree (intermediate) of divorce will not suffice. Even if the decree is final there may be other issues. For example, in the CNMI, a divorce decree is not deemed “final” until 30 days after the date on the decree. This is to make sure that the 30-day appeal period has passed and that no appeal has been filed. Other states may have different appeal periods, although 30 days is the most common. Remember there is no federal marriage or divorce law; these matters are a matter of state law and may differ widely.

If the former spouse died, you will need to present a certified copy of the official death certificate; and if the marriage was annulled, a certified copy of a decree of annulment. Due to the fact that a divorce is relatively easy to obtain in the United States, annulments from U.S. jurisdictions are relatively rare. Annulments are more common from countries that have no divorce, such as the Philippines, or where a divorce is difficult to obtain.

Most U.S. jurisdictions now have computerized court and vital statistics records for birth, marriage, and divorce. So if the marriage was terminated by either death or divorce within the last 30 years, court certified documents are relatively easy to obtain. The same is true of many countries; for example, we can now obtain certified marriage, divorce, and birth records from the Philippines’ National Statistics Office online, for a modest fee. For U.S. records, you need to find out the state and the county where the death or divorce took place, and contact the appropriate clerk of court or county clerk. This information is easily available online. If the document you seek dates back prior to 1980, you may need to contact the proper court and see if they have records for the date you need. Most jurisdictions have microfilm or microfiche copies of old records. If they do, they will send you a copy on request. You will have to pay a fee for the certified copy, plus postage. The older the record, the more difficult it is to obtain.

[B]Alien spouse with prior marriage(s)[/B]

The basic rule for alien spouses is the same as for U.S. citizen spouses: you must present termination documents for each prior marriage. If the document is in a foreign language, you must have a certified translation. Fortunately, most documents from the Philippines are in English, so no translation is necessary. Documents from China are in Chinese, but Chinese government agencies that issue vital documents have official translators attached to their offices. Therefore, documents from China come in a bound booklet form that already includes an official translation. This occasionally poses its own problems. (We had a client whose official divorce decree read that the child of the marriage would be “fostered” by the father. This led the USCIS adjudicator to question whether the mother had custody of the child because she interpreted the word “foster” to possibly mean “custody.” We had the document re-translated by our own Chinese translator and it turned out that the Chinese word which had been translated as “foster” meant “support,” not “custody.” The matter was resolved in our client’s favor.)

Many foreign workers, often from the Philippines, have lived in the CNMI for a very long time, often 20 years or more. Traditionally, they marry young and have children young. When these workers came to the CNMI, they were mostly in their 20’s. Although they usually supported spouses and children left behind, they often formed new relationships and marriages with other foreigners and with U.S. citizens, and had more children here. This worked, more or less, until federalization of immigration. Now we see many of these couples in our offices seeking a green card for the foreign spouse and, although they would otherwise be qualified, there this little matter of a prior marriage back in the home country. We always ask why they got married if they knew that they were still married and we get the most astonishing variety of answers: “I forgot,” (not just the wife but the three children), “I thought it was annulled,” “I thought it was a secret marriage,” “I thought it was never registered,” and our favorite, “I think I was drugged at the time, I don’t remember.”

Some people have several former marriages and may have had one annulled but not all. In a recent case we had a client who had been married twice previously, once in her home country, to the father of her children and later to an FAS citizen on Saipan. Her third marriage was to a U.S. citizen. She had gotten a divorce from the FAS citizen but it turned out she was still married to her first husband. That meant that (1) she needed to get her first marriage terminated and (2) her second marriage was never valid because it was bigamous, so her then attorney advised that the divorce didn’t count and she had to have the second marriage annulled before she could marry again. We do not necessarily agree that this was the correct procedure, but this is what her former attorney advised her to do.
[B] Options to untangle marital webs[/B]

1. Divorce: The first thing to understand is that you can get a divorce in the CNMI even if your home country doesn’t allow it. The only requirement is that one of the parties has resided in the CNMI for 90 days. (For many years, the residency requirement was two years; this was changed by P.L. 17-20, which also removed the requirement that divorce had to be “for cause” and allows divorce on the basis of “irreconcilable differences.”) So, if you have a secret marriage lurking in the background, you will need to file for divorce in the Commonwealth Superior Court. There are several ways of serving the absent spouse, depending whether or not you know his or her address. Not knowing your spouse’s current address does not disqualify you from getting a divorce, but you will have to serve the summons and divorce complaint by publication. You will need to pay a $150 filing fee to the Court; adjudication, if the divorce is uncontested (the usual case), will depend on the Court’s calendar; the typical time is two to three months. Please note that some countries may not recognize a divorce that took place in a different country. For example, if a citizen of the Philippines gets divorced in the CNMI, that person is free to remarry in the CNMI and in the United States but may not be free to remarry in the Philippines. The Philippines will usually recognize the divorce and remarriage regardless, although we often have to convince nervous clients that no one is going to clap them in chains when they arrive at the airport in Manila.

2. Annulment: “An annulment differs conceptually from a divorce in that a divorce terminates a legal status, whereas an annulment establishes that a marital status never existed.” Black’s Law Dictionary. The Roman Catholic Church prohibits divorce: “What God has joined together, let no man put asunder.” Unfortunately, being of the Roman Catholic faith does not guarantee a successful marriage. Therefore, beginning in the Middle Ages, annulment has become a legal instrument to terminate marriages in Catholic countries. The legal fiction is that, for whatever reason, the marriage was never valid, even if consummated. This is not difficult to understand if the marriage involved force, lack of consent, incapacity or an underage bride or bridegroom. It is much more difficult to comprehend when the parties cohabited for decades and there are children of the marriage. Nevertheless, people in all ages have wanted to get out of unhappy marriages, and Catholic countries adopted the annulment format to comply with the Church’s prohibition on divorce.

We understand that there is no divorce available under the civil laws of the Philippines, to cite the most frequent example we see. A marriage cannot be dissolved by divorce only by annulment or a Declaration of Nullity of Marriage. We understand that both of these are costly and time-consuming procedures and not readily available to contract workers in the CNMI. Generally, we understand that the grounds for annulment under Philippine law are as follows:

* Absence of parental consent to the marriage of a party who is over 18 but under 21 years of age;

* Mental illness;

* Fraud;

* Consent obtained by force, intimidation or undue influence;

* One party is physically incapable of consummating the marriage;

* Either party was, at the time of the marriage, afflicted with a serious or incurable sexually transmitted disease.

3. Declaration of Nullity of Marriage: This is an option under Philippine law for termination of marriage as an alternative to annulment. Generally the grounds for Declaration of Nullity of Marriage under Philippine law are as follows:

* If either party is under 18 (even with parental consent);

* Marriage solemnized by a person not legally authorized to do so;

* Marriage solemnized without a license;

* Bigamous or polygamous marriage;

* Mistake of identity as to one party by the other;

* Marriages between relatives (specifically defined);

* Psychological incapacity such as abnormal interpersonal behavior.

Please note that the grounds for annulment are more like traditional U.S. grounds for divorce; and grounds for a declaration of Nullity of Marriage are more like traditional U.S. grounds for annulment.

Please further note that this is an overview is obtained from publicly available sources; neither one of us is admitted to practice in the Philippines. If you have specific questions about Philippine law, please consult a lawyer who is admitted to practice in the Philippines.

[B]Marriage or remarriage[/B]

Once the former marriages of one or both parties are legally terminated or voided, the parties are free to marry. That seems pretty obvious. But there are remaining issues. If the parties were previously married to each other, but either of them was still married to someone else, do they need to remarry once the prior marriage is terminated or voided? Do they need to void their first marriage and get married for a second time? (These are not frivolous questions. We have clients with prior marriages who have been married to each other three times so far in an effort to clear their marital complications. It remains to be seen whether they need to get married for a fourth time.) In the past, we have advised our clients to simply remarry, without having their first marriage annulled, once all of their prior marriages were resolved. This has not previously been questioned by USCIS. Recently, however, a USCIS officer took the position that, in order for the marriage to be valid for immigration purposes, the prior marriage between the parties also needed to be voided in order for them to remarry.

As we said previously, marriage is a matter of state law and we now believe that CNMI law may provide us with an answer. 8 CMC §1321 provides as follows: “A decree annulling a marriage may be rendered on any ground existing at the time of the marriage which makes the marriage illegal and void or voidable. The court may, however, refuse to annul a marriage which has been ratified and confirmed by voluntary cohabitation after the obstacle to the validity of the marriage has ceased, unless the public interest requires that the marriage be annulled.”

So therefore it seems that if either husband or wife was still married to another person at the time of their own marriage, then, as long as they continued to live together and the prior marriage was terminated or voided, their first marriage would be valid and they would not need to annul the first marriage and marry for a second time; the first marriage is ratified and confirmed. However, this would still take a court procedure and an order from a Judge of the Superior Court. We haven’t tested it, but we are aware of a naturalization application that was saved by this argument, although it took about 10 years to reach that point.

The general rule: when it comes to immigration, get those little secrets out of the closet early, and let your attorneys work to find a solution.

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[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.[/I]

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[I]Maya Kara is a native of Hungary and comes to the practice of law by way of her interest in Asian history. Bruce Mailman is a native of Bakersfield, California and was a private investigator in California prior to becoming a lawyer. Both have lived and practiced law in the CNMI for over 20 years, Maya in government service and Bruce in private practice. They are married and are partners in the law firm of Mailman & Kara, LLC in Garapan, Saipan.[/I]