6 months wait after a divorce

[pushbrk 12,898]

So the official answer then is that USCIS looks at and follows the state law where the divorce was granted?

When the USC files a petition for a spouse or fiance/fiancee, the decree of divorce goes with the paperwork. I don't know why we would even be assuming that the law of another random state might apply.

I hadn't even thought of the cooling period prior to getting the paperwork. The way the OP worded his question it sounded like he had the paperwork in hand but was being restricted by his state law.

Let's assume he does.

USCIS doesn't know where he plans to marry. Should they take his plans to marry in another state into account when approving the petition?

No, and we should not assume that "having the paperwork" is equal to being free to marry. It depends on what the paperwork says and that varies by State. The divorce attorney is the one to ask if one is "free to marry".

It is MY opinion based on MY reading that the OP is free to marry in any other State, as long as he doesn't cohabitate in Oklahoma during the six month waiting period. This is what I read. Bold for emphasis.

http://www.kanialaw.com/case-types/family-...divorce-law.htm

Waiting Period for Remarrying After Divorce in Oklahoma

Oklahoma statute prohibits a person from remarrying in Oklahoma within six (6) months after the finalization of a divorce, unless the marriage is to the person's former spouse. Okla. Stat. #######. 43, § 123 (1998). Any person violating this statute is guilty of the felony of bigamy, which is punishable by imprisonment in state penitentiary for not less than one year not more than three (3) years. Okla. Stat. #######. 43, § 124 (1998).

However, the United States Constitution provides that every state shall give "full faith and credit" to the laws and judicial determinations of other states. U.S. Const. art. IV, § 1. This provides the opportunity for people divorced in Oklahoma to remarry during the waiting period, so long as the marriage is performed in another state and under the laws of another state. Further according to Oklahoma Supreme Court precedent, a marriage conducted in another state during the six (6) month waiting period will be considered valid in Oklahoma and not voidable. Copeland v. Stone, 842 P.2d 754 (Okla. 1992).

However, Oklahoma statutes have addressed this loophole by making it a crime for a person under the six (6) month waiting period to remarry in another state and then cohabitate in Oklahoma during the waiting period. The crime is considered felony adultery. Okla. Stat. #######. 43, § 123 (1998). Whether this crime passes constructional muster, is up for debate, though, as there is no case law addressing this issue.

Now, whether the USCIS adjudicator assigned to the case will agree with my opinion is anybody's guess.

[rebeccajo 14]

So the official answer then is that USCIS looks at and follows the state law where the divorce was granted?

When the USC files a petition for a spouse or fiance/fiancee, the decree of divorce goes with the paperwork. I don't know why we would even be assuming that the law of another random state might apply.

I hadn't even thought of the cooling period prior to getting the paperwork. The way the OP worded his question it sounded like he had the paperwork in hand but was being restricted by his state law.

Let's assume he does.

USCIS doesn't know where he plans to marry. Should they take his plans to marry in another state into account when approving the petition?

No, and we should not assume that "having the paperwork" is equal to being free to marry. It depends on what the paperwork says and that varies by State. The divorce attorney is the one to ask if one is "free to marry".

It is MY opinion based on MY reading that the OP is free to marry in any other State, as long as he doesn't cohabitate in Oklahoma during the six month waiting period. This is what I read. Bold for emphasis.

http://www.kanialaw.com/case-types/family-...divorce-law.htm

Waiting Period for Remarrying After Divorce in Oklahoma

Oklahoma statute prohibits a person from remarrying in Oklahoma within six (6) months after the finalization of a divorce, unless the marriage is to the person's former spouse. Okla. Stat. #######. 43, § 123 (1998). Any person violating this statute is guilty of the felony of bigamy, which is punishable by imprisonment in state penitentiary for not less than one year not more than three (3) years. Okla. Stat. #######. 43, § 124 (1998).

However, the United States Constitution provides that every state shall give "full faith and credit" to the laws and judicial determinations of other states. U.S. Const. art. IV, § 1. This provides the opportunity for people divorced in Oklahoma to remarry during the waiting period, so long as the marriage is performed in another state and under the laws of another state. Further according to Oklahoma Supreme Court precedent, a marriage conducted in another state during the six (6) month waiting period will be considered valid in Oklahoma and not voidable. Copeland v. Stone, 842 P.2d 754 (Okla. 1992).

However, Oklahoma statutes have addressed this loophole by making it a crime for a person under the six (6) month waiting period to remarry in another state and then cohabitate in Oklahoma during the waiting period. The crime is considered felony adultery. Okla. Stat. #######. 43, § 123 (1998). Whether this crime passes constructional muster, is up for debate, though, as there is no case law addressing this issue.

Now, whether the USCIS adjudicator assigned to the case will agree with my opinion is anybody's guess.

I don't think it matters whether an AO would agree with your opinion (and I'm not being argumentative - play along).

An AO can't predict whether the petitioner would marry the beneficiary outside of Oklahoma, nor can they AO predict where they would reside.

IMO, the case could not be approved with such language in the decree. Too many variables.

[Usui Takumi 1,562]

So the best advice that can be given is that even if the paperwork is in hand its in the best interest for the petitioner to wait the 6 months or at least a good portion of it before submitting a petition.

(unless of course processing times are short and the petitioner is willing to weigh the costs of potentially reapplying later if its denied.)

[rebeccajo 14]

So the best advice that can be given is that even if the paperwork is in hand its in the best interest for the petitioner to wait the 6 months or at least a good portion of it before submitting a petition.

(unless of course processing times are short and the petitioner is willing to weigh the costs of potentially reapplying later if its denied.)

IMO that would be foolish. I wouldn't want a denial of a case on my record with the Service just because I'm impatient.

[Usui Takumi 1,562]

Yeah I can see that I guess.

[Nik+Heather 121]

You are free to marry in another state in less than 6 months as long as you meet the requirements of the other state but you cannot cohabit in the state of Oklahoma until the divorce decree is 6 months old.

The Oklahoma Statute you are concerned about is Title 43, Section 123.

§43-123. Remarriage and cohabitation - Appeal from judgment.

It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person in this state until the expiration of thirty (30) days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of the felony of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of the felony of adultery.

I am not a lawyer and this is not legal advice, only my opinion.

The divorce of the beneficiary isn't granted in Oklahoma, so I'm not really seeing how this law applies to this couple.

I am wondering if Pushbrk's lawyer webpage is missing this key phrasing bolded above because they don't typically deal with people outside Oklahoma trying to get married there? Maybe bears some clarification.

Edited November 23, 2009 by Nik+Heather

[1HappyGuy 45]

Many states have this, so called, "cooling off period" before a divorce becomes final. Therefore, if your state has such a law you are not technically divorced until that final date. Just be patient and wait the six months. I assume your planned marriage is intended to be for a long time, so why rush. You should have the rest of your life together.

Edited November 23, 2009 by 1HappyGuy

[SunDrop 59]

Still curious as to whether the reverse is true, where the divorcee is the beneficiary.

Using only the information in the thread, could one not interpret that since the state of Oklahoma has to recognise a marriage performed in another state as legal, that the petitioner is therefore considered free to marry as soon as the decree absolute is granted, according to the constitution. Therefore the 6 month restriction is a mute point because the petition is unlikely to be processed within 6 months from the day of filing.

Should they be lucky enough to be in possession of a K1 within the 6 month period, they then would have an obligation to not use the visa until such a time as they could legally cohabit - irrespective of where they choose to marry. The cohabitation is a more important point, since AOS depends on demonstrating an bona fide marriage, and mostly demands intermingling and cohabitation as the qualifying evidence. The beneficiary would also be complicit in a felony, which is never a good idea when it comes to immigration! lol

[*julez* 124]

Still curious as to whether the reverse is true, where the divorcee is the beneficiary.

Using only the information in the thread, could one not interpret that since the state of Oklahoma has to recognise a marriage performed in another state as legal, that the petitioner is therefore considered free to marry as soon as the decree absolute is granted, according to the constitution. Therefore the 6 month restriction is a mute point because the petition is unlikely to be processed within 6 months from the day of filing.

Should they be lucky enough to be in possession of a K1 within the 6 month period, they then would have an obligation to not use the visa until such a time as they could legally cohabit - irrespective of where they choose to marry. The cohabitation is a more important point, since AOS depends on demonstrating an bona fide marriage, and mostly demands intermingling and cohabitation as the qualifying evidence. The beneficiary would also be complicit in a felony, which is never a good idea when it comes to immigration! lol

Since you were not resident in that state for the divorce, nor was the divorce granted in that state, the rule would not apply to you, a UK citizen.

[john_and_marlene 162]

There are 2 parts to the waiting period in Oklahoma.

Part 1: Cooling off period -- The decree of divorce is not final for a period following the initial petition(10 days when there are no children - 90 days when there are children).

Part 2: Remarriage -- If you are divorced in Oklahoma and want to remarry in Oklahoma, there is a 6 month waiting period from the final divorce before a new marriage license can be issued. If you divorce in Oklahoma you may remarry sooner in another state if their marriage law does not forbid it. If you divorce in another state, there is no waiting period in Oklahoma.

Still curious as to whether the reverse is true, where the divorcee is the beneficiary.

Using only the information in the thread, could one not interpret that since the state of Oklahoma has to recognise a marriage performed in another state as legal, that the petitioner is therefore considered free to marry as soon as the decree absolute is granted, according to the constitution. Therefore the 6 month restriction is a mute point because the petition is unlikely to be processed within 6 months from the day of filing.

Should they be lucky enough to be in possession of a K1 within the 6 month period, they then would have an obligation to not use the visa until such a time as they could legally cohabit - irrespective of where they choose to marry. The cohabitation is a more important point, since AOS depends on demonstrating an bona fide marriage, and mostly demands intermingling and cohabitation as the qualifying evidence. The beneficiary would also be complicit in a felony, which is never a good idea when it comes to immigration! lol

It absolutely does not work that way

[Usui Takumi 1,562]

I still don't think we know how USCIS reacts to the various state laws and because of that there appears to be a risk involved.

[rebeccajo 14]

There are 2 parts to the waiting period in Oklahoma.

Part 1: Cooling off period -- The decree of divorce is not final for a period following the initial petition(10 days when there are no children - 90 days when there are children).

Part 2: Remarriage -- If you are divorced in Oklahoma and want to remarry in Oklahoma, there is a 6 month waiting period from the final divorce before a new marriage license can be issued. If you divorce in Oklahoma you may remarry sooner in another state if their marriage law does not forbid it. If you divorce in another state, there is no waiting period in Oklahoma.

Still curious as to whether the reverse is true, where the divorcee is the beneficiary.

Using only the information in the thread, could one not interpret that since the state of Oklahoma has to recognise a marriage performed in another state as legal, that the petitioner is therefore considered free to marry as soon as the decree absolute is granted, according to the constitution. Therefore the 6 month restriction is a mute point because the petition is unlikely to be processed within 6 months from the day of filing.

Should they be lucky enough to be in possession of a K1 within the 6 month period, they then would have an obligation to not use the visa until such a time as they could legally cohabit - irrespective of where they choose to marry. The cohabitation is a more important point, since AOS depends on demonstrating an bona fide marriage, and mostly demands intermingling and cohabitation as the qualifying evidence. The beneficiary would also be complicit in a felony, which is never a good idea when it comes to immigration! lol

It absolutely does not work that way

John -

During these time frames you have illustrated - is the decree entered before them or after?

Do the parties receive their final entries of divorce AFTER the times have lapsed or before?

[pushbrk 12,898]

So the official answer then is that USCIS looks at and follows the state law where the divorce was granted?

When the USC files a petition for a spouse or fiance/fiancee, the decree of divorce goes with the paperwork. I don't know why we would even be assuming that the law of another random state might apply.

I hadn't even thought of the cooling period prior to getting the paperwork. The way the OP worded his question it sounded like he had the paperwork in hand but was being restricted by his state law.

Let's assume he does.

USCIS doesn't know where he plans to marry. Should they take his plans to marry in another state into account when approving the petition?

No, and we should not assume that "having the paperwork" is equal to being free to marry. It depends on what the paperwork says and that varies by State. The divorce attorney is the one to ask if one is "free to marry".

It is MY opinion based on MY reading that the OP is free to marry in any other State, as long as he doesn't cohabitate in Oklahoma during the six month waiting period. This is what I read. Bold for emphasis.

http://www.kanialaw.com/case-types/family-...divorce-law.htm

Waiting Period for Remarrying After Divorce in Oklahoma

Oklahoma statute prohibits a person from remarrying in Oklahoma within six (6) months after the finalization of a divorce, unless the marriage is to the person's former spouse. Okla. Stat. #######. 43, § 123 (1998). Any person violating this statute is guilty of the felony of bigamy, which is punishable by imprisonment in state penitentiary for not less than one year not more than three (3) years. Okla. Stat. #######. 43, § 124 (1998).

However, the United States Constitution provides that every state shall give "full faith and credit" to the laws and judicial determinations of other states. U.S. Const. art. IV, § 1. This provides the opportunity for people divorced in Oklahoma to remarry during the waiting period, so long as the marriage is performed in another state and under the laws of another state. Further according to Oklahoma Supreme Court precedent, a marriage conducted in another state during the six (6) month waiting period will be considered valid in Oklahoma and not voidable. Copeland v. Stone, 842 P.2d 754 (Okla. 1992).

However, Oklahoma statutes have addressed this loophole by making it a crime for a person under the six (6) month waiting period to remarry in another state and then cohabitate in Oklahoma during the waiting period. The crime is considered felony adultery. Okla. Stat. #######. 43, § 123 (1998). Whether this crime passes constructional muster, is up for debate, though, as there is no case law addressing this issue.

Now, whether the USCIS adjudicator assigned to the case will agree with my opinion is anybody's guess.

I don't think it matters whether an AO would agree with your opinion (and I'm not being argumentative - play along).

An AO can't predict whether the petitioner would marry the beneficiary outside of Oklahoma, nor can they AO predict where they would reside.

IMO, the case could not be approved with such language in the decree. Too many variables.

It's an interesting discussion. Frankly, I think the AO would simply look at the final divorce decree and determine it was ok. I doubt they are familiar with the remarriage restrictions of Oklahoma law and if they are, they'll know the couple is free to marry elsewhere. The OP could indicate their intention to marry outside Oklahoma our after the six months in their cover letter if they so choose.

The big problem is that WE ARE speculating and without some official answer, we can't know. With that in mind, I would tend to err on the side of filing after the six months have passed. I'm not even sure a definitive answer would make a difference as the result would depend on the specific AO and what their own understanding of proper procedure would be.

I just want to make it very clear that I'm having a hypothetical discussion here. I don't know the answer and am not advising the OP to file before six months after the date of the decree. If it gets denied, there's no refund of the filing fee.

[pushbrk 12,898]

You are free to marry in another state in less than 6 months as long as you meet the requirements of the other state but you cannot cohabit in the state of Oklahoma until the divorce decree is 6 months old.

The Oklahoma Statute you are concerned about is Title 43, Section 123.

§43-123. Remarriage and cohabitation - Appeal from judgment.

It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person in this state until the expiration of thirty (30) days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of the felony of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of the felony of adultery.

I am not a lawyer and this is not legal advice, only my opinion.

The divorce of the beneficiary isn't granted in Oklahoma, so I'm not really seeing how this law applies to this couple.

I am wondering if Pushbrk's lawyer webpage is missing this key phrasing bolded above because they don't typically deal with people outside Oklahoma trying to get married there? Maybe bears some clarification.

All my references are to the OP's situation. He is the US Citizen divorced in Oklahoma. So the question is whether he is "free to marry" during the six months immediately following the date of his divorce decree.

[Nik+Heather 121]

You are free to marry in another state in less than 6 months as long as you meet the requirements of the other state but you cannot cohabit in the state of Oklahoma until the divorce decree is 6 months old.

The Oklahoma Statute you are concerned about is Title 43, Section 123.

§43-123. Remarriage and cohabitation - Appeal from judgment.

It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person in this state until the expiration of thirty (30) days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of the felony of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of the felony of adultery.

I am not a lawyer and this is not legal advice, only my opinion.

The divorce of the beneficiary isn't granted in Oklahoma, so I'm not really seeing how this law applies to this couple.

I am wondering if Pushbrk's lawyer webpage is missing this key phrasing bolded above because they don't typically deal with people outside Oklahoma trying to get married there? Maybe bears some clarification.

All my references are to the OP's situation. He is the US Citizen divorced in Oklahoma. So the question is whether he is "free to marry" during the six months immediately following the date of his divorce decree.

OK.....well, it's not clear to me who got divorced where. "She" got divorced, so if the male is the USC, then she didn't get divorced in Oklahoma.

Flipper, can you sort us out?