What happens if your US citizen spouse files for an annulment?

In the journey of marriage, not all paths lead to a lifelong partnership. For foreign-born spouses married to US citizens, the prospect of an annulment can be particularly daunting, not just emotionally but also in terms of immigration status and the dream of building a life in the United States. Understanding the implications of an annulment on your immigration status is crucial. 

Understanding annulment

An annulment effectively means that the marriage is considered to have never legally existed, which can undermine the basis for the foreign-born spouse’s immigration status if it was based on the marital relationship. This is particularly relevant for those applying for a green card or those with conditional status, where the marriage’s validity is crucial. Unlike divorce, which acknowledges the dissolution of a legally valid marriage, an annulment asserts that, due to certain reasons, the marriage was invalid from the start.

To prove that a marriage to a foreign-born spouse never legally existed, a US-born spouse would need to file for an annulment under specific grounds that are recognized by the state where the annulment is being filed. The grounds for annulment can vary by state, but they generally include conditions that would render the marriage invalid from the start. For foreign-born spouses, the most pertinent ground is often fraud, which could imply that the marriage was entered into for the sole purpose of obtaining immigration benefits, such as a green card. 

Here are some common grounds for annulment that could be used to prove a marriage never legally existed:

  1. Fraud: The marriage was based on significant deception by one of the spouses. For example, marrying solely to obtain immigration benefits without the intention of establishing a life together could be considered fraud.
  2. Underage Marriage: One or both parties were under the age of consent at the time of marriage and did not have parental consent or a court order allowing the marriage.
  3. Bigamy: One of the spouses was already legally married to someone else at the time of the marriage.
  4. Incapacity to Consent: One or both parties were unable to consent to the marriage due to mental incapacity or the influence of drugs or alcohol.
  5. Force or Duress: One of the spouses was forced or threatened into the marriage.
  6. Physical Incapacity: One of the spouses is physically incapable of consummating the marriage, and this incapacity is incurable and was unknown to the other spouse at the time of marriage.

To file for an annulment, the US-born spouse must present evidence supporting the grounds for annulment. This evidence could include documentation, witness statements, and other relevant information that demonstrates the existence of one of the grounds for annulment. For instance, if fraud is the basis for the annulment, evidence could include communications that reveal the deceptive intent of the foreign-born spouse or documentation related to the immigration process that supports the claim of marriage fraud.

Immigration implications of annulment

The implications of an annulment on a foreign-born spouse’s immigration status largely depend on the stage of the immigration process they are in and whether their status is conditional or permanent.

Conditional residence status

Many foreign-born spouses are granted conditional residence status upon marriage to a US citizen, which is valid for two years. To transition from conditional to permanent resident status, both spouses typically must jointly file Form I-751, Petition to Remove Conditions on Residence, within 90 days before the conditional green card expires. However, an annulment can complicate the process of receiving a green card. 

If an annulment is granted before the conditional residence period ends, the foreign-born spouse may face challenges in proving that the marriage was bona fide and not merely for the sake of immigration benefits. This situation would require a waiver of the joint filing requirement, where the foreign-born spouse must convincingly demonstrate that the marriage was entered into in good faith.

Waiver for Conditional Residents

If a foreign-born spouse received conditional residence based on their marriage and the marriage is annulled, they can still apply for a waiver of the requirement to file a joint petition. To be eligible for the waiver, they must demonstrate that they entered the marriage in good faith and not to circumvent immigration laws. 

When filing a waiver, providing substantial evidence to support the application is essential. This evidence may include:

  • Proof of Bona Fide Marriage: Documents showing that the marriage was entered into in good faith and not to evade immigration laws. This can include joint bank statements, lease agreements, photographs, and other evidence of a shared life.
  • Evidence of Divorce or Annulment: A final divorce decree or annulment document.
  • Evidence of Abuse or Extreme Cruelty: Police reports, court orders, medical records, or other documentation supporting claims of abuse or extreme cruelty.
  • Documentation of Extreme Hardship: Evidence demonstrating that deportation would cause extreme hardship, such as medical reports, financial documents, and country conditions.

A waiver petition can be filed any time after the conditional residence is granted if the basis for the waiver exists, even if the conditional green card has already expired. Considering the complexities of immigration law and the high stakes involved, seeking legal advice from an experienced immigration attorney is highly recommended. An attorney can help navigate the waiver process, ensure that the application is correctly filled out, and provide sufficient evidence.

Permanent Residence and Naturalization

For those who have already transitioned to permanent resident status after the required conditional residence period, an annulment should not directly affect their green card, assuming the marriage was not deemed fraudulent. However, when applying for naturalization to become a US citizen, the annulment could trigger a re-examination of the marriage’s authenticity. Applicants may need to provide substantial evidence proving the marriage’s legitimacy.

The foreign-born spouse should collect and be prepared to present evidence that the marriage, although annulled, was entered into in good faith and not solely for immigration benefits. This evidence could include joint financial records, photographs, correspondence, and other documents demonstrating the couple’s shared life. Given the potential for an annulled marriage to affect naturalization, it is advisable to seek legal counsel. An immigration attorney can provide guidance on the naturalization process and how to address the annulment.

The financial impact of an annulment

The financial implications of an annulment can be significant for an immigrant, affecting various aspects of their financial stability and obligations. Often the foreign-born spouse must hire an attorney experienced in both family and immigration law to navigate the complexities of their case. In addition to attorney fees, court costs are associated with filing for an annulment. These fees vary by state and by the complexity of the case. For example, the average costs for an annulment in Oklahoma can range from $500 to $5,000. 

During an annulment, a division of assets that both parties acquired during the course of the supposed marriage must be addressed. The courts decide how to divide the property and assets in a manner that is equitable but may not necessarily be equal. Similar to assets, any debts incurred during the marriage will need to be divided between both parties. Joint bank accounts and credit lines must also be settled. This process can affect an immigrant’s financial standing and access to resources, especially if they are not the primary financial account holder.

If the US citizen spouse sponsored the immigrant, the annulment might not absolve the sponsor of their financial obligations under the Affidavit of Support. According to the Federal Poverty Guidelines, the US citizen or permanent resident who signed the affidavit promises to support the foreign national at 125 percent or more of the poverty level until the foreign national gains US citizenship or accumulates 40 work quarters, which amounts to ten years of work. Therefore, even after an annulment, the foreign spouse may still have the right to seek financial support from their former US citizen spouse as stipulated in the Affidavit of Support.

Re-marriage and future immigration applications

Having a record of an annulled marriage to a US citizen can make it more difficult for an immigrant to obtain a different visa or a new K-1 visa. While an annulled marriage is considered legally non-existent, it’s often necessary to disclose the annulment in future marriage applications, especially in jurisdictions or religious institutions that require a full marital history. 

Individuals who have had a marriage annulled may face increased scrutiny in future immigration applications. Immigration authorities may closely examine the circumstances of the annulled marriage and the legitimacy of subsequent marriages, particularly if the annulment was sought on grounds like fraud, so it’s incredibly important to be honest and transparent in your applications and interviews. Misrepresentation or failure to disclose an annulled marriage when required can lead to severe consequences, including denial of the application and potential legal penalties.

The intersection of family law and immigration law is complex, and the stakes are high for foreign-born spouses facing the prospect of an annulment. While the path forward may seem daunting, it’s important to remember that it’s possible to navigate these challenges successfully with the right legal support and preparation. At Stump and Associates, we understand the intricacies of immigration law and are committed to providing compassionate and effective legal support to foreign-born spouses during these challenging times.

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