6 months wait after a divorce

[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.

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.

I'm thinking the OP doesn't have a decree to read any language from. That's why I asked John if he knows when the decree is entered.

[rebeccajo 14]

Flipper, can you sort us out?

This is what Flipper said:

"Hello everyone. My fiancee finally got her divorce finished, but in the state of Oklahoma there is a 6 month waiting period befor she can get married again in Oklahoma.

Should we wait, and file after this 6 months is up, or is it ok for us to file sooner if we plan on getting married in a state with a shorter wait period? Does USCIS even care?

Thanks. "

Flipper's fiance must be the USC. And all he says is the divorce is 'finished'. I wonder if she has a final decree.

Oooooooooooooooh - I see what you are saying, Heather!

Edited November 23, 2009 by rebeccajo