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Immigration and the Validity of Foreign Divorces

by | Aug 2, 2021 | Divorce |

People who immigrate to this country while they are married will sometimes decide to divorce their spouse just as many American citizens decide to divorce their spouses. Since they were married in their birth country they frequently return to the birth country for a divorce. Naturally, they assume that this divorce is valid and they are free to marry someone else.

When immigrants apply to Immigration and Customs Enforcement (ICE) for permission to live in the United State or to become citizens they have to disclose their marriage and divorce history. To the surprise of many applicants they discover that ICE will recognize their marriages but not their divorces. Thus, in the eyes of ICE, the applicant is married to two people at the same time. This is the crime of bigamy. ICE considers bigamy a crime of “moral turpitude.” Crimes of moral turpitude are grounds for deportation. Many people who apply for residence with ICE are informed that they are facing deportation. Fortunately, ICE will give them some time to divorce the first spouse in a court proceeding that ICE accepts.

The basic problem is that ICE, a branch of the federal government, does not recognize judicial decisions from other countries. The US Constitution has a “full faith and credit” clause that requires the Federal government and all state governments to give full faith and credit to the laws and judicial decisions of the other states and Federal government. This clause does not apply to other countries. ICE does not want to be in the business of trying to figure out when a foreign divorce is valid and when it is not. As a result, ICE tells everybody who got divorced in a foreign country that the divorce is invalid. ICE informs these people that they have to get another divorce in the United States. A divorce can take more time than is allowed by ICE before deportation. Fortunately, there is another way. If both parties to the first marriage agree that the divorce is valid then they can file an action to recognize the foreign divorce.

Massachusetts (and other states) have a concept called “comity”. Under this doctrine, Massachusetts Courts will recognize and declare valid foreign divorces that meet our concept of due process and fairness. This means that a number of factors have to be considered to determine if a foreign divorce is valid including:

1. One of the parties currently lives in Massachusetts.

2. The parties were married in the foreign country.

3. At least one of the parties was a citizen of the foreign country when they got divorced.

4. Both parties participated in the foreign divorce.

5. The terms of the divorce judgment are found by the Massachusetts Judge to be fair and reasonable or the Massachusetts Judge can modify the judgment to make it fair and reasonable.

A judgment to recognize a foreign divorce can be obtained much quicker than a divorce. Since it is a judgment from Massachusetts (or another state) ICE will give full faith and credit to the Massachusetts decision and stop deportation proceedings.

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