What If Things Don't Work Out?
*This article is written about the Colombian Latina,
but the same rules apply to any foreign national lady or gentleman.
By: Gary G. Bala, Esquire
LAST REVISED: APRIL 2005
In the unfortunate event that "things don't work out" with your Colombian Latina or other foreign lady or gentleman national, TWO MAJOR ISSUES will need to be addressed:
I) The Marriage Dissolution Process, and
The more promptly and forcefully these issues are addressed, the less trouble and difficulties will arise as time passes. Resolving these issues will also allow you and your "ex" to secure two tangible benefits:
U.S. and Colombian rules are in agreement on one critical point. A formal marriage dissolution document is necessary before a partner can re-marry or obtain new immigration benefits based on a new spouse. See Matter of Ceballos, #A22324968, (BIA June 13, 1979).
I. THE MARRIAGE DISSOLUTION PROCESS:
The marriage dissolution process in civil law offers three (3) options: divorce (the formal process of termination of married status), annulment (the process of nullifying the marriage so that it is treated as if it never happened) or interim legal separation (a process offered in some states as an interim step to final divorce). Naturally, a sound and timely decison must be made about which of these three (3) marriage dissolution vehicles is most appropriate in your case.
One of the first questions to answer is whether this dissolution process should be started in Colombia (or other foreign country home of your "ex") or in your own home state. Contrary to popular belief, it is not legally necessary to accomplish a divorce or annulment in the same location as the marriage. A divorce or annulment accomplished in a country, state or locality, if valid under that jurisdiction's laws, are treated as valid in all other jurisdictions, at least "on paper".
Within the United States domestically, this mechanism is known as "full faith and credit" under Article IV, Section I of the U.S. Constitution. Internationally, this is accomplished under the provisions of the Hague Convention Treaty, Legalization of Documents Provision, if both jurisdictions are parties to the treaty, and with the use if an "apostille". See: List of Countries Which Are Part of Hague Convention on Legalization of Documents, State Department. See also: Explanation of the Hague Convention and "Apostille", State Department.
There some cautions, however, to these general rules. CAUTION #1 "QUALIFICATIONS": The first is that the parties must qualify for divorce or separation under your state's laws. If, for example, your state has a residency requirement for the foreign lady and she has decided to leave and return home, your case may not qualify for a divorce under your state law. Thus, you may have no choice but to divorce or annul in your lady's home country. CAUTION #2 "PRACTICAL CONSIDERATIONS": In addition, there are practical considerations of time, cost and ease of process. For instance, accomplishing a divorce in a foreign country is usually more expensive and time-consuming than doing one here in most states (especially if uncontested). Further, you may also want to consider availing yourself of the jurisdiction with less stringent "no-contest" requirements such as one which allows submission of simple signatures rather than personal appearance. CAUTION #3 "REGISTRATION OR RECOGNITION PROCESS": While a divorce decree or annulment order issued by a court of competent jurisdiction in the US is technically "valid" in Colombia under Hague Convention on Legalization of Documents, you are still required to "register" or "recognize" it in Colombia. (It is also suggested that any Colombian Divorce is stamped with Apostile by the Colombian Foreign Minister's Office: Ministerio de Relaciones Exteriores, Officina de Legalizaciones, Trasversal 17A, No. 9-45, Santafe de Bogota, Colombia, Tel: (1) 525-1862, 525-1860, 522-3697). "Registration" process is done through a civil notary. The problem is that in many cases this will require a new "court filing" in Colombia which, for practical purposes, is tantamount to another divorce filing in Colombia. Thus, it is sometimes said that you are forced as a practical matter to secure a "second divorce order" in Colombia.
For the American Bar Association's review of the Divorce, Annulment and Separation laws in all fifty states, please see: Table Summarizing Law in Fifty States.
II. THE IMMIGRATION PROCESS
The marriage dissolution process triggers an immigration process as well, with some rather complicated rules. The first and most important question to ask is: At what point in time does the marriage dissolution with your "ex" take place? There are different immigration rules depending on when this has happened.
It should be noted first that your marriage with your foreign spouse took place either in her home country after which you secured a Spousal-Resident Visa (2-Year Conditional Residence), or in the United States under a Fiancee Visa (90-Day K-1), or other non-immigrant visa, which she secured to enter our country.
Your marriage dissolution can take place then at one of three points:
Under Case No. #1, (AFTER MARRIAGE, BEFORE ADJUSTMENT), the first course of action is for the U.S. Citizen spouse to write a formal letter to the local Immigration Service office (Investigations or Enforcement Unit). The letter should be mailed Certified and Return Receipt or Priority Mail with Signature Confirmation, and advise in writing that the marriage has failed, that marriage dissolution will take place and that you are now longer living as man and wife. This will have the effect of, at least, terminating any civil and criminal liabilities for charges of potential immigration fraud. The financial obligations of the I-134 Affidavit of Support will theoretically continue until the one of the legally-recognized events triggering termination take place. In many cases however, the local immigration office as a practical matter will choose not to enforce the Affidavit under these circumstances.
The foreign ex-spouse's options under this Case No. #1 are limited however. In almost all cases, she will be required to return to her home country or risk facing falling out of legal status. One option available to her, however, in appropriate cases is the Violence Under Women Act II, November 2000. This allows the ex-foreign spouse and any children in the U.S. to adjust to permanent residency (or if not in the U.S. presently to secure a resident visa) if they can show domestic abuse or extreme cruelty (physical or mental), even without a showing of extreme hardship. Specifically, the "ex" must show one of the following four (4) grounds:
Generally, a foreign ex-spouse in Case No. #1 is not permitted to marry another U.S. citizen and adjust status to legal residency. Adjustment under the K-1 visa is limited to adjustment based in marriage to the petitioner for the K-1. Under some circumstances however, an exception under the Legal Immigration and Family Equity Act (LIFE) might be possible. If an I-130 Petition for Alien Spouse is filed by a new U.S. Citizen spouse in the U.S. before April 30, 2001, and the "ex" can show physical presence on the date of enactment of the law (December 21, 2001), adjustment to premanent residency may be possible. Another possibility for the foreign ex-spouse is another fiancee visa or spousal-resident visa if she has an appropriate new U.S. Citizen spouse sponsor. Of course, she must satisfy all of the requirements of such a visa, and also not be excludible based on 180 days or more of "out of legal status" time in the U.S.
Under Case No. #2, (AFTER MARRIAGE AND 2-YEAR CONDITIONAL RESIDENCY), the U.S. spouse must again advise the local Immigration Service office (Investiagtions or Enforcement Unit) in writing, Certified and Return Receipt or Priority Mail with Signature Conformation, that the marriage is over, that marriage termination will take place and that they are no longer together as man and wife. The GENERAL RULE is that the lady immigrant "loses" her conditional residency and immigration status, all her Immigration Service residency cards must be returned, and she is subject to removal from U.S.
However, there are some notable exceptions: The foreign ex-spouse after marriage dissolution has several options. She can petition to remove conditions on her residency under I-751. Technically, it is a waiver of the requirement to file a joint petition, and seeks to adjust status based on one of four (4) grounds:
Under Case No. #3, (AFTER MARRIAGE AND AFTER REMOVAL OF CONDITIONS ON LEGAL RESIDENCY), marriage dissolution with the U.S. ex-spouse has no immigration impact on the foreign ex-spouse. Her rights to live, work, travel and study in the U.S. are not impacted. The U.S. ex-spouse would be well-advised nevertheless to advise his local Immigration Service office in writing regarding the marriage dissolution to extinguish any non-financial liabilities.
In any of these three cases, if the U.S. Citizen spouse suspects and can likely substantiate a claim that the foreign spouse committed immigration and visa fraud, then it is advisable to send written notice together with any proofs Certified and Return Receipt or Priority Mail with Signature Confirmation to the local immigration office (Investigations or Enforcement Unit), U.S. Embassy of the foreign spouse's home country and the Violence Against Women's Act Unit at the Immigration Service Vermont Regional Service Center.
**WHO ARE SOME PUBLIC NOTARIES AND LAWYERS WHO CAN ASSIST
**WHAT ARE SOME OF THE PENALTIES IN THE VISA PROCESS?
Penalties for the American citizen or permanent resident for some typical offenses associated with foreign brides and fiancees:
1. Conviction for Marriage Fraud
2. Conviction for Willfully and Knowingly Falsifing or
**WHAT ARE SOME ADDITIONAL READING LINKS?:
1. For information concerning U.S. Citizens securing an uncontested divorce in the Dominican Republic, please see: the legal requirements set forth by the Embassy of the Dominican Republic.
2. For information concerning INS Report of March 1999 suggesting 8% rate of marriage fraud among "Mail Order Brides", please see: INS Report to Congress.
3. For information compiled from 1995 U.S. Census Bureau on divorce statistics comparing U.S. divorce rate with divorce rates in Latin countries, see Table prepared by Planet-Love.com (Credit to Planet-Love.com): Divorce Statistics.
4. For information on immigration rules for Battered Spouses and Children, please see:
5. For information on U.S. D.O.J. Office of Violence Against Women, please see:
6. For information on Asset and Income Protection in the Pre-Marriage Phase, please see:
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