DEAR Attorney Gurfinkel:
I have been out of status in the U.S. since 2010. I’ve been separated from my husband since 2003, and he already has another family in the Philippines.
I have a boyfriend here in the U.S., and we have been living together for about two years. We’re planning to get married, but I know that since I was married in the Philippines, I need to annul my marriage in the Philippines before I can marry my boyfriend. Is there any hope for me?
Very truly yours, JN
Dear JN:
First, divorce is recognized in the U.S. for immigration purposes. You do not need to annul your marriage in the Philippines in order to get married in the U.S. Instead, you can divorce your spouse in the U.S., which would constitute a valid termination of your first marriage, enabling you to enter into a second marriage. (Uncontested divorces, where the other party will sign the papers, and not contest the divorce, typically takes about 6 months. That’s a lot shorter than the time for an annulment. Further, in most states, you don’t need a reason for divorcing; just “irreconcilable differences,” or “we just don’t love each other anymore”. In the Philippines, there usually has to be a reason, like abandonment, psychological incapacity etc.).
Second, court proceedings usually require the plaintiff or petitioner to personally appear in court. If you are in the U.S. and are out of status, how would you be able to personally appear in a Philippine court? If you depart the U.S., you could be subject to the 10-year bar, preventing you from returning for 10 years, unless you applied for and were granted a waiver.
Third, U.S. immigration law is clear that if a divorce is valid and recognized where it was obtained, it will be recognized for immigration purposes. Therefore, if you obtain a valid U.S. divorce, it will be recognized by USCIS, and with that divorce, you could marry your boyfriend.
Finally, some types of divorces would not be recognized, such as divorces obtained in the Dominican Republic without either party showing up in court. (I know that some people obtained these “no-appearance” divorces, but those type of divorces may not be recognized or be valid).
I know that there are a lot of myths, misconceptions, rumors, etc. about various laws and requirements, including the validity of divorces in lieu of annulments. People also have misunderstandings about eligibility for various immigration benefits, the requirements, documents required, proof necessary, etc. That’s why it’s important that when seeking immigration benefits, you should consult with an attorney, who can clarify with you the requirements and how you can meet those requirements, if you are eligible.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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