Does one need to file an annulment if marriage is void from the start

[Lexlee08 18]

Hi everyone,

I'm not sure where to post this so mods please move this to the proper forum if possible. Anyways, I am seeking information for my brother. A quick background of his case, he has been an overstay since 2001( B1/B2 visa, inspected). He married my sis-in-law 10/10/10(they have known each other since Aug. 2009, I think). He had his AOS interview here in Sacramento last 2/14/11 and got denied due to "validity of their marriage". My sis-in-law filed for dissolution of her domestic partnership 9/7/2010 and finally yesterday she went to the court to get it finalized, and from the paper work she got from the court the dissolution will be effective 3/21/2011. They want to get married again a soon as possible so they can re-file ASAP too but I am just wondering if they still need to file for annulment if their marriage is void from the start (since my sis-in-law was not free to marry that time). They got married in Reno, NV and they are residents of Sacramento,CA. They just wanna make sure that they will be doing the right thing this time. Thanks guys, I hope to hear from any of you soon!

[VanessaTony 3,567]

If the marriage isn't valid, how do you go about divorcing? You'd have to be married to get divorced or file and annulment, and as they aren't married they don't have to do either. The "marriage" isn't valid. That said though, I feel like it should be "cleaned up" somehow by letting the registry know it turns out they weren't free to marry.. but they can't really because that would mean admitting that they LIED when they got married and said they were free to marry.

As far as USCIS is concerned as long as you show the divorce for any ACTUAL marriages that's fine.

[Lexlee08 18]

Thanks Vanessa & Tony,

They did not know that a "registration for domestic partnership" is considered "marriage" that's why when they got married it never entered their minds that it will be an issue. That's what their immigration lawyer thought so to, if their previous marriage is invalid then what's the ground for annulment/ plus they gonna marry each other again she even said that is kinda' "renewal of vows". Thanks for the info, have a great day.

[JimVaPhuong 4,863]

I agree with Vanessa. The marriage is voidable, but as long as it remains on the books in Nevada then it could cause problems. It shouldn't be a problem to get the Nevada marriage voided, and start with a clean slate.

[Myopia 93]

Hi everyone,

I'm not sure where to post this so mods please move this to the proper forum if possible. Anyways, I am seeking information for my brother. A quick background of his case, he has been an overstay since 2001( B1/B2 visa, inspected). He married my sis-in-law 10/10/10(they have known each other since Aug. 2009, I think). He had his AOS interview here in Sacramento last 2/14/11 and got denied due to "validity of their marriage". My sis-in-law filed for dissolution of her domestic partnership 9/7/2010 and finally yesterday she went to the court to get it finalized, and from the paper work she got from the court the dissolution will be effective 3/21/2011. They want to get married again a soon as possible so they can re-file ASAP too but I am just wondering if they still need to file for annulment if their marriage is void from the start (since my sis-in-law was not free to marry that time). They got married in Reno, NV and they are residents of Sacramento,CA. They just wanna make sure that they will be doing the right thing this time. Thanks guys, I hope to hear from any of you soon!

They don't have to "do" anything at all. They are not married legally because the domestic partnership wasn't dissolved. They just need to get a license to marry and then get married.

Think of it how it looks legally, forget that it is a same sex relationship. There were two legal agreements joining your sister in law to two different people. The US doesn't recognize plural marriages and so the subsequent marriage/partnership was null and void.

Now that no legal partnership exists, your sister in law is free to marry her chosen partner in a legal binding agreement also known as marriage.

There is no need to get a paper stating that the subsequent marriage was invalid because the dissolution will be proof that there is no legal binding contract between your sister in law and anyone else other than what is current.

So why do I feel like I made that sound complicated? lol

[Lexlee08 18]

They don't have to "do" anything at all. They are not married legally because the domestic partnership wasn't dissolved. They just need to get a license to marry and then get married.

Think of it how it looks legally, forget that it is a same sex relationship. There were two legal agreements joining your sister in law to two different people. The US doesn't recognize plural marriages and so the subsequent marriage/partnership was null and void.

Now that no legal partnership exists, your sister in law is free to marry her chosen partner in a legal binding agreement also known as marriage.

There is no need to get a paper stating that the subsequent marriage was invalid because the dissolution will be proof that there is no legal binding contract between your sister in law and anyone else other than what is current.

So why do I feel like I made that sound complicated? lol

Myopia,

It does sound more complicated than what it is LOL , anyways, so what does Jim meant to start a "clean slate" from NV? Isn't it it is considered void already and not voidable? They called the NV registrar's office awhile back and was "advised" by one of the staff that they don't have to do anything since it is void from the start. They are just trying to get as much info online as possible as they are just barely making it, plus the re-filing fees and immigration lawyer's fee is too much. If I recall correctly isn't it there was a case here in VJ that the couple got denied because they married twice 'coz of the waiting period issue, do you think this situation will apply to them? I know that NV and CA have no waiting period when it comes to re-marriage. I'll try to look for that case so we our memories can be refreshed.

[Deputy Purple 1,294]

They called the NV registrar's office awhile back and was "advised" by one of the staff that they don't have to do anything since it is void from the start

...

If I recall correctly isn't it there was a case here in VJ that the couple got denied because they married twice 'coz of the waiting period issue, do you think this situation will apply to them? I know that NV and CA have no waiting period when it comes to re-marriage. I'll try to look for that case so we our memories can be refreshed.

They should ask the NV Registrar's Office for written confirmation that the marriage is void as they will probably need it since USCIS has record of the voidable marriage.

[Myopia 93]

They should ask the NV Registrar's Office for written confirmation that the marriage is void as they will probably need it since USCIS has record of the voidable marriage.

This is what I dont get. I know USCIS is a whole other beast but their case was denied specifically because she wasnt free to marry her partner. It has nothing to do with the voidable marriage. It had everything to do with the unresolved domestic partnership. That seems to be the problem which is about to be resolved. Right?

Why would USCIS want proof that the marriage was void when they denied his petition because of that very reason!

Dont you think we are making this more complicated than needs to be?

If a man marries 20 women in 20 states, every marriage after the first is voided. Would he have to (or would the Judge order) go to every state and get each marriage voided when it already is?

[Deputy Purple 1,294]

I agree but in their shoes wouldn't you want to be able to present USCIS with confirmation that they were both legally free to marry at the time of their last wedding?

If the registrar can't provide the document then they will need to have a NV Lawyer write a legal opinion (I know there's an official word for it) explaining how the Marriage was automatically VOID under NV law therefore requiring no further action.

For me to adopt our little guy we'll need to provide a letter fro a Lawyer in the Philippines citing the specific section of the Family code that says his bio-father has not parental rights and explaining why.

Edited March 16, 2011 by Bob 4 Anna

[Myopia 93]

I agree but in their shoes wouldn't you want to be able to present USCIS with confirmation that they were both legally free to marry at the time of their last wedding?

If the registrar can't provide the document then they will need to have a NV Lawyer write a legal opinion (I know there's an official word for it) explaining how the Marriage was automatically VOID under NV law therefore requiring no further action.

For me to adopt our little guy we'll need to provide a letter fro a Lawyer in the Philippines citing the specific section of the Family code that says his bio-father has not parental rights and explaining why.

Yea I would. I married my husband in a religious ceremony in 2009 and we married again in a civil ceremony in 2011.

In NY state the marriage is valid even without a license if its carried out by someone qualified in your religion (Rabbi, Priest,Imam etc) but when I filed the AOS, I did add a page specifically about the law in NY just in case they thought there was any funny business with us being married twice(NY is a state that you can marry the same person again and again with a license).

So I guess they have a few days to wait until the dissolution, they may as well get a letter stating that fact.

[Lexlee08 18]

Thanks for the input guys, I will still try to research on this as consulting a lawyer is still one of our last resort (for financial reasons). My brother called the Washoe county superior court to find more information and the "customer service" person advised him to check with a lawyer. I will keep you guys posted but if you know of any information please continue posting.

[Lexlee08 18]

This is what I dont get. I know USCIS is a whole other beast but their case was denied specifically because she wasnt free to marry her partner. It has nothing to do with the voidable marriage. It had everything to do with the unresolved domestic partnership. That seems to be the problem which is about to be resolved. Right?

Why would USCIS want proof that the marriage was void when they denied his petition because of that very reason!

Dont you think we are making this more complicated than needs to be?

If a man marries 20 women in 20 states, every marriage after the first is voided. Would he have to (or would the Judge order) go to every state and get each marriage voided when it already is?

The domestic partnership issue is almost resolved( at least when they get the final decree then it is resolved completely). Plus the fact that they will marry each other again I think should be sufficient enough proof to USCIS stand point. Their NV marriage is not voidable it is Void period(at least from what I understand), for me voidable is there should be a reason why this marriage should be annulled VS the fact that it is void from the time it happened. I will tell him to make the call again to the NV registrar's office to see if they can file a paperwork to the effect of saying that their marriage is void.

[JimVaPhuong 4,863]

The domestic partnership issue is almost resolved( at least when they get the final decree then it is resolved completely). Plus the fact that they will marry each other again I think should be sufficient enough proof to USCIS stand point. Their NV marriage is not voidable it is Void period(at least from what I understand), for me voidable is there should be a reason why this marriage should be annulled VS the fact that it is void from the time it happened. I will tell him to make the call again to the NV registrar's office to see if they can file a paperwork to the effect of saying that their marriage is void.

The state of Nevada will consider the marriage valid until someone tells them otherwise. For example, if they applied for another marriage license in Nevada then Nevada might very well ask for proof that the previous marriage was terminated. If they apply for a marriage license in any other state then the state would likely take their word for it if they didn't find any other record of marriage in that state.

What I'm saying is that there is still a loose end here. There is a marriage on the books in Nevada, and no corresponding termination of that marriage in Nevada or any other state. They have to use the subsequent termination of the domestic partnership in California to prove that the Nevada marriage was invalid. In other words, a "divorce" between his wife and her ex-domestic partner proves his first marriage to his wife is not valid. If he divorces her (heaven forbid) then it's going to be very difficult for him to obtain court documents for the domestic partnership to prove his first marriage to her was invalid because he wasn't a party to the domestic partnership.

Yes, the marriage is invalid, but there is a loose end that could come back and bite them, or at least him. They can clean up the loose end, and forever disconnect the marriage in Nevada from the domestic partnership in California by asking the state of Nevada to nullify the marriage.

[Lexlee08 18]

Hi everyone,

Update on my brother's case, he got his green card yesterday(8/20/11) ! Yay! Finally after being an overstay for 11 years! This is what happened, they got the final decree of the "dissolution of the domestic partnership" 1st week of May 2011, they re-married May 19, 2011 (they did not file any annulment paperwork from NV) and they re-filed their AOS(I-130/ I-485) basing from this new marriage date last May 25, 2011 with a lawyer this time. They had their interview last Aug. 2,2011 they were told to wait for 1 month for the decision and a week after the interview they got the approval letter and yesterday was the green card. There was not a lot of question this time(I'm not sure if the presence of the lawyer made the difference or their documentation was just right). So I guess there is always hope for everyone, now they can focus on having a baby and to start their marriage life in a "clean slate". Thank you everyone for the reply to this thread and good luck to everyone that are still waiting.