Is our marriage valid?

[Mike & Jane 1]

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.

Thanks a lot, Jim,God bless you! I asked the same thing question on Avvo.com and some lawyer said that the divorce decree from Texas is not even final before 30-day waiting period and so she didn't have capacity to remarry in the first place.I don't know if that lawyer knows what he is talking about.

Actually,I trust you more than him.Sorry, for bothering you again,I wanted to know that in case they deny our case,how long after the AOS denial, they start deportation process? Could we remarry on Dec 5 in Wisconsin(waiting period of 6 months over) and apply(I-130,I-485) again if our AOS is denied? We are so horrified because she's pregnant.I feel so stupid and dumb because we didn't do any research before our marriage.

[JimVaPhuong 4,863]

Thanks a lot, Jim,God bless you! I asked the same thing question on Avvo.com and some lawyer said that the divorce decree from Texas is not even final before 30-day waiting period and so she didn't have capacity to remarry in the first place.I don't know if that lawyer knows what he is talking about.

Actually,I trust you more than him.Sorry, for bothering you again,I wanted to know that in case they deny our case,how long after the AOS denial, they start deportation process? Could we remarry on Dec 5 in Wisconsin(waiting period of 6 months over) and apply(I-130,I-485) again if our AOS is denied? We are so horrified because she's pregnant.I feel so stupid and dumb because we didn't do any research before our marriage.

The lawyer was wrong. Don't be surprised. Lawyers are wrong as often as the rest of us. They're not superhuman.

The divorce is final the day the judge signs the decree declaring the marriage to be terminated. What isn't final yet is either party's freedom to remarry in Texas. If the divorce wasn't actually final then the law would allow the parties to ask the judge to set aside the divorce petition before the 30 days expired, and they would still be married. In fact, they can't do this, though they CAN remarry each other during the 30 day waiting period. The point is that resuming the marriage requires that they actually MARRY AGAIN. If the divorce wasn't final then this wouldn't be possible.

Now, there ARE some states where the lawyer's advice would have been true. In Massachusetts, for example, a divorce is not final until either 90 or 120 days have passed since the Judgement of Divorce has been signed, depending on whether or not the divorce was contested.

[Mike & Jane 1]

Thanks a lot, again,Jim.I was becoming very hopeful before I came across this-

http://www.visajourney.com/forums/topic/247654-i-130-notice-of-denial/

In this case, the OP's wife got divorced in the state of Alabama,got remarried in Florida (bypassing 60 day waiting period).Their marriage in Florida is legal and valid but, in their interview they weren't asked many questions, and were sent a denial letter for I-130. According to OP,the IO denied their I-130 because their marriage in Florida was not considered valid in the state of Alabama(they were Alabama residents)even though it is valid in Florida and other states.

Now,in our case, we were living together in Wisconsin,when her ex-husband filed for the divorce in Texas,in Texas there is a waiting period of 60 day from petition to granting of the divorce.After this, there is a waiting period of 30 day for divorce decree to be final.I called a divorce lawyer in Houston, and confirmed with her that I could go to another state, marry there,and my marriage will be considered valid in that state.

But,we live in Wisconsin(waiting period of 6-Month)and our marriage in Minnesota is not recognized in Wisconsin.Now as the IO goes by the state you reside,Wouldn't it cause a problem?

The OP got their denial letter after 3-4 months, which might not be the standard.What in case the IO at our interview deny our case, and sends us a denial letter with in a week? IMO,we still will have 30 days to refile.

We live in Wisconsin ,we could remarry on Dec 5(6-Month waiting period over).My questions-

1) In order to remarry in Wisconsin on Dec 5,should we annul the marriage in Minnesota?

2) After the annulment,can we marry in Wisconsin or will we have to wait another 6 months to remarry here?

3) Could we move to Minnesota ,annul the first marriage and remarry?

4) How long after the Denial of I-130,removal proceedings begin?

5) Could she refile AOS(after remarrying) if she is in removal proceedings?

I already have called five lawyers and they all give conflicting answers...Please help ...

[Deputy Purple 1,294]

In the thread you're referring too that couple when to Florida to get around the Alabama Law.

Talk to a local (Wisconsin) Family Law Lawyer. If the Wisconsin Law states that you must be divorced for 6 months regardless of where the divorce is filed then you may be correct that the marriage is invalid.

If the Wisconsin Law states that after getting divorced in Wisconsin you must wait 6 months to get married again then you should be in the clear.

[JimVaPhuong 4,863]

The OP in that thread wasn't absolutely certain why the I-130 was denied, but suspected that it was because they didn't prove they had a valid marriage. They were never told their marriage wasn't valid in Alabama, and Vanessa&Tony quoted the Alabama family code which made it pretty clear that their marriage WAS recognized in Alabama. They also went on to marry AGAIN in Alabama, just in case their marriage in Florida wasn't recognized by USCIS. They didn't give their exact timeline, but their I-130 was denied AFTER the second marriage. Vanessa&Tony was pretty convinced that the second marriage in Alabama was illegal because their first marriage in Florida was recognized in Alabama.

The case law the OP cited in that thread - "krud vs krud" - does not exist. I imagine the OP didn't remember the actual names in the case, and just used "krud" as a placeholder. I would be very interested in knowing the specific case and reading the court's decision.

Anyway, the comments in the thread are mostly conjecture since the OP never knew for certain why the I-130 had been denied. If it was because they thought the marriage was not valid in Alabama then they didn't need to wait months to deny their petition. It could have been denied at the interview. I suspect that their case may have been under investigation when USCIS discovered the second marriage in Alabama, which set off alarm bells and caused their denial. Dunno. It's just a guess.

I didn't know your marriage was not recognized in Wisconsin. Are you certain this is the case, even though the divorce was granted by a court in a different state?

[Mike & Jane 1]

Thanks Jim and Bob.I called two family lawyers in Superior,WI and they told me that my marriage in Minnesota is not recognized in the state of Wisconsin as we didn't wait for 6 months, even though, she was divorced in Texas.Again,not sure,if could rely on them.I'm very sure if the IO denies our case, we wouldn't get any money back.I deserve this as I'm so stupid.My questions:

1) In order to remarry in Wisconsin on Dec 5,should we annul the marriage in Minnesota?

2) After the annulment,can we marry in Wisconsin or will we have to wait another 6 months to remarry here?

3) Could we move to Minnesota ,annul the first marriage and remarry?

4) How long after the Denial of I-130,removal proceedings begin?

5) Could she refile AOS(after remarrying) if she is in removal proceedings?

[Deputy Purple 1,294]

Personally, I'd go to the interview.

I'm not sure that Wisconsin can say your marriage isn't valid unless you married in Wisconsin or one of you was divorced in Wisconsin less than 6 months before the marriage. Since neither the marriage or divorce happened in Wisconsin I don't see how Wisconsin Marriage/Divorce Laws apply.

Since you've already payed the fees and have an interview date I'd go. If USCIS doubts the validity of the marriage then they will let you know. If questioned about the waiting period just be honest and explain how it all happened.

Your worst case here is that USCIS denies based on invalid marriage in which case you annul the marriage on the grounds that she wasn't legally able to enter into a marriage then remarry after the WIS waiting period (from her divorce as annulment erases your marriage) and file a new AOS for her.

[Mike & Jane 1]

Thanks Bob 4 Anna.This is why the lawyers said my marriage in Minnesota is not recognized in Wisconsin.

http://www.burnettcounty.org/DocumentView.aspx?DID=126

Previous Marriage: If your last marriage ended by divorce, you cannot marry in Wisconsin until 6 months after the date of final decree of your divorce. This is true even if: You do not live in Wisconsin You were not divorced in Wisconsin There is no provision for waiving the 6-month waiting period for any cause.

Important Information for Wisconsin Residents about Marrying Out of State

General Wisconsin law prohibits Wisconsin residents from marrying out of state for the purpose of avoiding Wisconsin marriage restrictions (such as the 6-month post-divorce waiting period). Such marriages are “null and void” according to s. 765.04 (1-3), Wis. Statutes. You cannot use a Wisconsin marriage license to marry outside of the state. You cannot file an out of state marriage certificate in a vital records office in Wisconsin.

Legal Penalties for Violating Wisconsin Marriage License Laws (s. 765.30, Wis. Statutes)

(1) Not less than $200 nor more than $1,000 or imprisoned for not more than 2 years or both for:

a. Marrying outside the state for the purpose of avoiding Wisconsin laws

(2) Not less than $100 nor more than $1,000 or imprisoned for not more than 2 years or both for:

a. Making certain false statements to obtain a license to marry

b. Issuing a marriage license illegally (County Clerk)

c. Wilfully and knowingly performing a marriage without statutory authority to perform marriages in the state (see the list of authorized officiants)

d. Being a party to performing a fictitious marriage ceremony for fraudulent purposes

(3) Not less than $100 nor more than $500 or imprisoned for not more than 6 months or both for:

a. Unlawfully solemnizing a marriage (by the officiant or by the two parties themselves)

(4) Not less than $10 nor more than $200 or imprisoned for not more than 3 months or both for:

a. Failing to file a marriage certificate (the officiant must mail the certificate to the Register of Deeds within 3 days of the marriage ceremony per s. 69.16, Wis. Statutes.)

b. Failing to keep a public marriage docket (County Clerk)

Thanks a lot everyone, for helping us in this very tough condition. We'd have to go for annulment which will cost us $370,file I-130 and I485($1365) and hopefully not another $300 for I-693 and this is when we wouldn't have removal proceedings started.

Those living in Wisconsin,please learn from our bad experience, and please never do what we did, out of ignorance.

[Deputy Purple 1,294]

Thanks Bob 4 Anna.This is why the lawyers said my marriage in Minnesota is not recognized in Wisconsin.

http://www.burnettcounty.org/DocumentView.aspx?DID=126

Previous Marriage: If your last marriage ended by divorce, you cannot marry in Wisconsin until 6 months after the date of final decree of your divorce. This is true even if: You do not live in Wisconsin You were not divorced in Wisconsin There is no provision for waiving the 6-month waiting period for any cause.

Important Information for Wisconsin Residents about Marrying Out of State

General Wisconsin law prohibits Wisconsin residents from marrying out of state for the purpose of avoiding Wisconsin marriage restrictions (such as the 6-month post-divorce waiting period). Such marriages are “null and void” according to s. 765.04 (1-3), Wis. Statutes. You cannot use a Wisconsin marriage license to marry outside of the state. You cannot file an out of state marriage certificate in a vital records office in Wisconsin.

WOW! Wisconsin isn't kidding are they?

I guess you are toast then. Might as well call USCIS and cancel the AOS filing. Sounds like you know exactly what is needed to get things on the right track. Good Luck...

[JimVaPhuong 4,863]

Important Information for Wisconsin Residents about Marrying Out of State

General Wisconsin law prohibits Wisconsin residents from marrying out of state for the purpose of avoiding Wisconsin marriage restrictions (such as the 6-month post-divorce waiting period). Such marriages are “null and void” according to s. 765.04 (1-3), Wis. Statutes. You cannot use a Wisconsin marriage license to marry outside of the state. You cannot file an out of state marriage certificate in a vital records office in Wisconsin.

This is serious. Under Texas law, the marriage would be "voidable", but it would not be void unless someone sued to have it voided. Under Wisconsin law, specifically for Wisconsin residents, the marriage is void automatically. We've been focusing on Texas law when the real a$$ biter is Wisconsin law.

I think the answer to your question "Is our marriage valid?" appears to be "No, it's not".

[Mike & Jane 1]

Thanks again, Bob and Jim,one last query,what should we do with Minnesota marriage? It costs $370 to annul the marriage in Duluth,Minnesota.Is it absolutely necessary? or, we just go to Superior, Wisconsin court house on Dec 5( waiting period of 6 months over) marry and reapply for AOS? This way we could save our $370 at least!!

[JimVaPhuong 4,863]

Thanks again, Bob and Jim,one last query,what should we do with Minnesota marriage? It costs $370 to annul the marriage in Duluth,Minnesota.Is it absolutely necessary? or, we just go to Superior, Wisconsin court house on Dec 5( waiting period of 6 months over) marry and reapply for AOS? This way we could save our $370 at least!!

At this point, the last thing I would be worried about is trying to save a few hundred dollars. This is becoming a dizzying mess of interstate marriage and divorce laws. It sounds like you've currently got a marriage that's valid in the state where the marriage took place, valid but voidable in the state where the prior divorce took place, but null and void in the state where you live. It doesn't sound like you can get your marriage recognized in in Wisconsin, so the only way to get back to a level playing field is to get the marriage annulled in Minnesota.

Seriously, I think you should talk to a family law attorney and see if you can get this mess untangled.

[Deputy Purple 1,294]

At this point, the last thing I would be worried about is trying to save a few hundred dollars. This is becoming a dizzying mess of interstate marriage and divorce laws. It sounds like you've currently got a marriage that's valid in the state where the marriage took place, valid but voidable in the state where the prior divorce took place, but null and void in the state where you live. It doesn't sound like you can get your marriage recognized in in Wisconsin, so the only way to get back to a level playing field is to get the marriage annulled in Minnesota.

Seriously, I think you should talk to a family law attorney and see if you can get this mess untangled.

Yep, exactly what Jim said...

[Mike & Jane 1]

As advised by Jim,Bob4Anna,and other members, we went to our AOS interview.The interviewer was a very friendly guy and told us that he has gone through our file very thoroughly just before our interview and that scared me to death.

He just asked the normal things like how we met,our addresses,future plans, and then all the Y/N questions.My wife was very nervous about this whole interstate divorce mess and she started crying there .The interviewer asked her why she was crying and she said she's very nervous.

Surprisingly, this guy is also from Duluth,MN where we got married and knows the city very well.He talked about Lake Superior, Enger park, Canal Park, and after sharing his beautiful experiences at Enger Park where we got married he said he's approving our AOS and we should be getting her GC in next 2 weeks and took her I-94.

But he didn't talk abt removal of conditions after the interview and didn't stamp her passport .After about 2 hrs we got an email saying that her card production has been ordered.

We really are still shocked if we are approved or not? Did he approve us without looking at the divorce decrees and state laws? or USCIS doesn't care about the state marriage laws and just cares abt the validity of the marriage in the state where the couple got married? Could this be a problem in the future if they look into this seriously at the time of removal of conditions? What should we do to fix this? Should we leave it the way it is or go to a family lawyer and ask for possible setbacks and solutions?

We are very happy and relieved but we don't know whether we should be happy or worried abt this...Living in the state of uncertainity would be a very hard thing for the next 2 years...

We really thank VJ and all the members who helped us through this complex journey.Thanks in advance for any answers...

[VanessaTony 3,567]

This is REALLY good news! I'm very happy for you.

It's just so bizarre to me and very confusing. Are they saying that if you got married in another state during the waiting period and THEN moved to that state that your marriage isn't valid there? Or are they saying only if you're a resident of that state at the time of marrying it matters?

Good lord.. I've certainly learnt from your experience... and I will be telling many other people I know how insane some US state laws are :S