Saving a marriage by ‘legally backdating’ a divorce

Dear Atty. Gurfinkel:

I divorced my first spouse in California, and then married an American citizen, who petitioned me for a green card, along with my child from my first marriage, as his “stepchild.”  Although we are truly in love and everything went fine at our interview, I received a denial because the USCIS states that I am not “legally” married to my second spouse. Instead, they claim that I was still married to my first spouse at the time I married my second spouse.

I know that California divorces should only take about six months. In my case, I had filed my divorce in January and served the papers on my ex-spouse immediately. It seems that my divorce became “final” on August 15, but thinking that I was already divorced, I had married my second spouse a day earlier, on August 14. So, USCIS states that on my wedding day (August 14) I was still legally married to my first spouse. Therefore, my American citizen spouse cannot petition me. Is there any hope? Also, my child is now 18 years old.

Very truly yours,

A.H.

Dear A.H.:

In order for a person to legally marry a second spouse, their first marriage must be terminated. This would include a final divorce decree.  Many people file for divorce, and obtained a divorce decree, but failed to pay attention to the part of the court order that specifies the date the marriage officially ends. So, they may get married to a second person before the date their first marriage terminated. In that case, the second marriage would be considered “bigamist,” and USCIS may not be willing to recognize that second marriage for immigration purposes.

However, there is a procedure, in certain circumstances, to have the divorce “legally backdated,” thereby validating the second marriage. For example, in California, a person is able to obtain a divorce decree six months after they serve their spouse with the divorce papers. Typically, if the spouse does not respond within 30 days, you can obtain a default judgment, even within that six month “waiting period.”

But let us say that there were some delays, foot dragging, or court congestion that resulted in the divorce decree being issued several months after it could have been. In that case, it could be possible to go back to the Family Court and legally “backdate” the effective date of the divorce, in order to salvage the second marriage. 

For example, in your case, you state that your divorce was filed and served in January. Therefore, it could have been possible for you to have obtained a final decree in June. However, the final decree was not issued until August 15, or two months beyond the legal minimum waiting period.  In certain circumstances, upon a showing of “good cause,” the judge could backdate the “effective date” of your divorce to sometime in June, or at least before your August 14 wedding day. Therefore, if you were legally divorced before your August 14 marriage to your second spouse, then the marriage to the second spouse would be retroactively valid. (In your case, remarrying your second spouse now may not help your child, who should be over 18. So, it would be better to salvage the original marriage to the petitioner, which was before your child’s 18th birthday.)

If you have a case or situation where you were too kulit, and got married before the divorce of your first marriage was final, and it is now messing up your immigration situation, I would strongly advise that you seek the advice of an immigration attorney who can analyze and evaluate your situation, and advise you on the best course of action. Before you act on your own, make sure what you are doing will help the case, as opposed to messing it up further. That is why it is important to seek guidance from an attorney, versus guessing on your own.

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