Is our marriage valid?

[Mike & Jane 1]

I live in Wisconsin,my wife got divorced in Texas(waiting period to remarry,30 days) moved to Wisconsin(waiting period of 6 months) and we got married in Duluth,Minnesota, which doesn't have any waiting period.We did this without WAITING for 30 days because there is no waiting period mentioned on her divorce decree.We didn't marry to circumvent the law but, because Duluth court house is very close to our house! We filed for AOS and we receieved her EAD yesterday and we have our interview coming up on OCT 12.

I'm getting really nervous as if our marriage is valid or not? Could they issue an EAD without looking through the divorce decrees?.The divorce decree she got from Texas doesn't mention any waiting period .

Are we going to have hard time in the interview? Should we even go to the interview?

[zooch76 9]

The way I understand it is this: if your marriage is legal in the state in which it was performed, that is is legal in the eyes of the US Government.

And yes, you should absolutely go to your interview. If they want/need more proof of a bona fide marriage they will ask for it. If you no-show, not only is this disrespectful to the officers involved but they might suspect you have something to hide. Also, people wait months for their AOS interview and people just deciding to no-show doesn't help speed things up. It is extremely disrespectful to all of us waiting, waiting and waiting for our interviews.

[Mike & Jane 1]

Thanks for the reply.Truly appreciated.We also want to go to the interview and waited for the interview for almost three months and yeah we're lucky that we got our interview.It's not like that we don't want to attend our interview but the fact that Wisconsin has a waiting period of 6 months which we didn't know about and also Texas has a waiting period of 30 days to remarry is making me crazy.Also,we were so stupid that we even didn't know about all this till yesterday.We married in Duluth, Minnesota, because our pastor is from there and also we live very close to the Duluth court house.

We had no idea of this "waiting period" and it was our mistake that we didn't do any research.We got married on June 17 after her divorce in Texas on June 4.We were in relationship for a year.She moved to Wisconsin in March,we started living together and her ex-husband started the divorce process in Houston,TX.

We filed for our AOS and got her EAD and Interview letter yesterday.My questions-

1. Should we remarry in Duluth, and get a new marriage license (Since 30 days have passed-Waiting period for Texas)

2. Since, we live in Wisconsin and here in order to marry, we have to wait for 6 months,should we wait till December and marry again?

3.Our interview is on Oct 14 and we have only two options available A) Go to the interview and leave everything to the discretion of IO B) Remarry in Duluth, Minnesota, to fulfill Texas waiting period?

We got out EAD and Interview letter already,should we presume that this is not going to an issue in the interview? What could be the best possible way to fix this?

[desert_fox 32]

You go by the Texas court order, as they have jurisdiction.

You didnt follow it....so what do you think???

[Mike & Jane 1]

You go by the Texas court order, as they have jurisdiction.

You didnt follow it....so what do you think???

Thanks for replying.The divorce decree she got from Texas doesn't mention any waiting period and that's the thing which is confusing us.

After the divorce case is filed, how long does it take to finalize?

There is a 60 waiting period in Texas from the date of filing of the petition with the court. That means that a divorce cannot be final for at least 60 days after filing - it does not mean that the divorce is automatically final on the 61st day. If the parties are in agreement as to all the terms of their divorce, the final decree of divorce can be prepared and signed by the parties during the 60 day period and can be entered by the court on the 61st day. The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce. If the parties are not in agreement, the average time it takes to finalize a divorce is about 6 months to one year or longer, depending on the complexity of the issues and the degree of dispute.

Her ex filed in April and after the waiting period of 2 months,their divorce was granted on June 4

Also,

Previous Marriage: ( This is to remarry in Texas)

If divorced within thirty days, Texas requires that you show a certified copy of your divorce decree stating the 30 day waiting period is waived.

Since we married in Duluth,Minnesota where there is no waiting period after the divorce,we didn't follow 30 days waiting period(Actually we just married in Duluth without having any idea of waiting periods!!).

Please help,don't know what to do and how to fix this.Thanks...

[Deputy Purple 1,294]

Consult a local family law (divorce) lawyer and ask them if she was indeed free to re-marry during the 30 day waiting period imposed by her Texas divorce.

Worst case for you is that she wasn't free to marry yet so your AOS will be denied and you'll have to remarry her (after getting your current marriage voided).

If the marriage isn't valid then you can't just get married again because the I-130 you submitted for her is based on your July 17 wedding and her I-485 is based on that I-130 so you would have to re-apply for AOS based on a valid marriage.

[desert_fox 32]

You state that the 30day wait applies if you REMARRY in Texas...so who knows?? Im not a lawyer, but if there is a fuzzy issue, USCIS will jump on it if they catch it.

[JimVaPhuong 4,863]

The purpose of the 30 day waiting period is to give the parties a chance to reconcile or file a motion to reopen the divorce proceedings. The State of Texas will not issue a marriage license until the 31st day after the divorce decree has been signed by the judge. If either party marries outside of Texas before the 31st day then the marriage is voidable by annulment if a suit is filed within one year of the marriage. Unless and until a suit is filed to nullify the marriage, the marriage is legal and recognizable in Texas, except under certain circumstances (same sex marriage, etc.).

If your wife's ex-husband is the spiteful type, you better hope he doesn't find out about the marriage, or doesn't know enough about the law to do anything.

[Mike & Jane 1]

Thank you all very very much.Her ex is now married to someone so I don't think he'd do anything like that but you never know I just want to confirm that our marriage in Duluth, Minnesota would be considered valid by the USCIS at the interview or not?.We were(and still are) residents of Wisconsin when we got married in Duluth,MN, and then her husband in Texas filed for the divorce and she got divorced on June 4 and we didn't wait for 30 days( wanna punch myself in the face for being so stupid and naive about all this waiting period thing)

We both are very much stressed about all this drama. We don't want to pay USCIS $1365 again,when they should have just returned our paper work because of invalidity of the marriage.They issue RFE to people for I-693, I-864, and several other reasons,they could have simply issued an RFE to us too or simply returned our whole AOS packet if our marriage is not valid.Instead, they issued her EAD and also we have to go to our interview on OCT 14.Why all this drama from USCIS's part when our marriage is not even valid for them?

Jim,could you or anyone else please confirm that we wouldn't be denied just because of our marriage screw up?Thanks a lot everyone for being so helpful...

[Bobby+Umit 161]

I really do not think it will be an issue at the AOS interview - they are more concerned that the two of you are married, and for love, not immigration purposes.

[Deputy Purple 1,294]

We don't want to pay USCIS $1365 again,when they should have just returned our paper work because of invalidity of the marriage. They issue RFE to people for I-693, I-864, and several other reasons,they could have simply issued an RFE to us too or simply returned our whole AOS packet if our marriage is not valid.

Just to clarify, there is a big difference between not filing a complete packet, incorrect fees or not having a petition-able relationship.

When you submit your packet it is checked for the proper form (I-130, I-485) for the petition & proper fee. If these exist then they accept it and deposit the fee. Missing supporting documents (I-864, I-693, Marriage & Birth Certificates) are only discovered during processing which would trigger an RFE. Not having a petition-able relationship (such as if USCUS thinks there may be a problem with the validity of your marriage) can only be determined during processing of your application(s). If it is determined that you don't have a petition-able relationship AT THE TIME OF YOUR APPLICATION then there is nothing you can do unless you believe that USCIS is incorrect. You can't file and then get married for example.

[Aztec&Taino 144]

I live in Wisconsin,my wife got divorced in Texas(waiting period to remarry,30 days) moved to Wisconsin(waiting period of 6 months) and we got married in Duluth,Minnesota, which doesn't have any waiting period.We did this without WAITING for 30 days because there is no waiting period mentioned on her divorce decree.We didn't marry to circumvent the law but, because Duluth court house is very close to our house! We filed for AOS and we receieved her EAD yesterday and we have our interview coming up on OCT 12.

I'm getting really nervous as if our marriage is valid or not? Could they issue an EAD without looking through the divorce decrees?.The divorce decree she got from Texas doesn't mention any waiting period .

Are we going to have hard time in the interview? Should we even go to the interview?

After having read the other VJ members' advice, I would still say that for your own peace of mind you should have a consultation with a family and immigration law attorney. You should definitely NOT miss your interview though!

Best of luck!

[JimVaPhuong 4,863]

Jim,could you or anyone else please confirm that we wouldn't be denied just because of our marriage screw up?Thanks a lot everyone for being so helpful...

I did a lot of hunting yesterday, but most of the sites just regurgitate the Texas divorce laws, which don't specifically address what happens if either party marries outside the state of Texas. I found a lot of conflicting information, mostly on forums and sites like Yahoo Answers, where the information being provided was mostly based on opinion. I did look specifically for cases where people had married in another state within 30 days of a Texas divorce. I found a few Q&A legal sites where users had asked this specific question, and the consensus was that Texas would recognize the marriage.

I also found a number of sites that mentioned "voidable", but they were vague and didn't provide any details, and were referring in general to states that have a waiting period, and not specifically to Texas.

Then I found this site (scroll down to Texas):

http://usmarriagelaws.com/search/united_states/divorce_laws/divorce_and_remarriage/index.shtml

Effective 1/1/74, if either party to a divorce marries a third party within the 30-day period immediately following the date the divorce is decreed, such a marriage is voidable and subject to annulment on the suit of a party to the marriage if the suit is brought within one year from the date of the marriage. However, the parties divorced may marry each other at any time.

I looked for laws that affected the Texas family code and took effect January 1, 1974. All I could find was SB-168, 63rd legislative session. It deals mostly with child custody, support, adoption, etc. It's over 400 pages so I didn't read it all. Feel free, if you're so inclined:

http://www.lrl.state.tx.us/LASDOCS/63R/SB168/SB168_63R.pdf

When I did a search for recognition of out-of-state marriages in Texas, most sites agreed that Texas will recognize an out-of-state marriage provided it was legally obtained, and is not contrary to Texas' legal definition of marriage. (A district judge in Texas was recently smacked down by an appeals court for granting a divorce to a same-sex couple because the marriage was contrary to the state's legal definition.)

Extrapolating from all of this stuff, I concluded that Texas would recognize the marriage unless a party to the previous marriage brought suit to have it annulled. I didn't check Minnesota family law to determine if it was legal to marry while a mandatory waiting period was in effect in another state.

[Mike & Jane 1]

Thanks Jim,Aztec&Taino,and Bob 4 Anna.Now we feel little bit better.I also tried to do some research, and found out that there is something called "reciprocity between states" and according to that if our marriage is valid in Minnesota then it should be considered valid by other states too.For instance,there is a waiting period of 60 days in Alabama and if someone marries with in those 60 days in the state of Alabama then, that marriage will be void but then the law(Alabama divorce law) clearly states that if the person divorced in Alabama gets marries in any other state, then Alabama will consider that marriage valid.

Several states divorce laws clearly state that if a person remarries in the waiting period(after divorce) then their marriage wouldn't be valid in those states but if they marry outside those particular states then the marriage would be considered valid.There are exceptions to this rule in case of Wisconsin and others.

According to Texas law, Prior to 1/1/70, where a divorce was granted upon the ground of cruel treatment, neither party could marry another person for a period of 12 months.

A marriage in Texas in violation of this prohibition was voidable. A marriage entered into outside the State of Texas during the 12-month period would be recognized as valid by the courts of Texas and of other States.

After 12/31/69, neither party to a divorce may marry a third party for a period of 6 months following the date the divorce is decreed. However, this prohibition may be waived by the court granting the divorce for good cause shown either at the time of the divorce decree or thereafter as to either or both of the parties. The divorced parties may marry each other at any time. A marriage to a third party in Texas within the 6-month prohibited period is voidable.

Effective 1/1/74, if either party to a divorce marries a third party within the 30-day period immediately following the date the divorce is decreed, such a marriage is voidable and subject to annulment on the suit of a party to the marriage if the suit is brought within one year from the date of the marriage. However, the parties divorced may marry each other at any time.

Again, this law doesn't mention if it has extraterritorial effect or not.

According to Minnesota marriage requirements for my county,

Residency Requirement:

You do not have to be a resident of Douglas County.

ID Requirement:

You must provide proper identification along with Social Security numbers.

Previous Marriages:

If you were previously married, you must show proof of divorce, death, or annulment from your most recent marriage.

All this is very confusing and frustrating. I want to know what would be our options in case they deny us at the interview? Remarry,and file the AOS again?

We could marry again right now, but it'd be of no use(AOS already filed) .What, if we marry again on Dec 5(Wisconsin waiting period of 6 months for remarrying is over) and apply for the AOS again?

How she'd know that she is not in deportation? One more last question,even, if they approve our AOS and grant her Conditional Green card ,could they come back and revoke that later on ,if they found about the waiting period screw up?

Sorry for the massive post.I know,I'm asking a lot of questions but we are going thorough a lot of stress because of this drama...

[JimVaPhuong 4,863]

Marriage laws are COMPLICATED, and each state has it's own completely different laws. USCIS doesn't even attempt to get involved in the details of marriage law in each state. They just want a validated certificate from the states in question that previous marriages have been properly terminated, and a new marriage has been granted in accordance with the laws of the state. It sounds like you've got the necessary documents. I honestly believe you'll be fine.

The only way I could see this coming back to bite you in the future is if 'someone' files a lawsuit to have the marriage annulled. After a year there will be no chance of that happening.

BTW, be careful with "reciprocity" laws. They aren't absolute, as I pointed out. For example, a same sex marriage granted in Massachusetts would NOT be recognized in Texas, in spite of the reciprocity laws. Some states will also not recognize a proxy marriage which was legally conducted in another state, or won't consider the marriage to be valid until it's been consummated. Most reciprocity laws carry a caveat that the union must fit the state's definition of a lawful marriage.