A green card is a nickname for authorization from the United States Government for an immigrant to live in the United States permanently. In the past, an immigrant who married a U.S. Citizen could apply for permanent residency.1 When a citizen concludes that their spouse married them for the sole purpose of getting the green card and wants nothing to do with the citizen spouse, what can the citizen do? Can the citizen get out of the marriage?
An annulment is a judicial decree that that a marriage never existed. It is commonly thought that an annulment is easier to get than a divorce and less can’t result in property division or alimony. However, in Massachusetts, this is not correct. An annulment can take as long as a divorce to obtain through the courts. In an annulment, a judge can award alimony, divide property, determine custody of children, and award child support. In other words, an annulment in Massachusetts is the same as a divorce except that it is much harder to get.
Massachusetts has no fault divorce which means that there is no defense to a divorce action. If one party says that want a divorce then that proves that the marriage is irretrievably broken down. That is not the case in an annulment. There is no such thing as a no-fault annulment. Every annulment must be based on specific grounds. The other spouse can contest the grounds and a judge has discretion and may find that the facts don’t prove that an annulment should be granted. The result is that parties can go through a trial for an annulment and still be married after the trial. This would never happen in a divorce.
One of the reasons for obtaining an annulment is fraud. In Massachusetts, not all fraud arises to the level of obtaining an annulment. The fraud must go the “essence of the marriage.” This means that the fraud must be of such that it addresses one of the essential reasons people get married. These reasons include a desire to cohabit, have sexual intercourse, and to have children. Other reasons could go to the essence of the marriage but don’t have to.
Usually, if a person gets married to obtain a green card there is no discussion about green cards. As such, there is no false representation constituting fraud. Failure to disclose something is considered a fraudulent concealment. Fraudulent concealment is not a basis for an annulment unless the concealment goes to the essence of the marriage. Failing to disclose an intent to not cohabit is sufficient for an annulment. Failing to mention that the marriage is to obtain a green card does not. In Massachusetts, failure to disclose an intent to get married to get a green card, without other facts, is not sufficient to get an annulment. However, intention to get the green card with other facts may be sufficient for an annulment. If the parties get married, live together, have sexual intercourse and after a short period separate then it may be very difficult to show that the immigrant spouse did not intend to participate in a marriage when they went through the wedding ceremony.
If you got married and want out of the marriage because your spouse wanted to get a green card you should get a divorce and not an annulment. If you want to consider an annulment you should consult an experienced family law attorney who can advise you of your rights.
1Alan Pransky does not practice immigration law and does not know the current rules regarding immigrant spouses and green card applications. Anybody interested in obtaining a green card should consult an immigration lawyer.