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Marital Dissolution carries special complications for immigrants to the U.S., especially those who gained their U.S. permanent residence ("green cards") through marriage to a petitioning spouse (whether a U.S. citizen or U.S. permanent resident).
While petitioning spouses in such marriages are often quick to claim that the immigrant spouse had deceptive motives in getting married, this New York Appellate Division opinion clearly shows that a trial court that orders an annulment risks reversal of that decision unless the petitioning spouse clearly carried his/her burden of proving that the immigrant spouse committed fraud. (This decision will be of considerable benefit to immigrants who wish to become divorced but are deeply fearful that their petitioning spouses will counterclaim for annulment in order to separately trigger deportation proceedings by the U.S. Department of Homeland Security).
To obtain an annulment, the spouse seeking the annulment (virtually always the petitioning spouse), must prove that:
The immigrant spouse knowingly lied with the intention of inducing consent to marriage by the petitioning spouse;
The misrepresentation would have deceived an "ordinarily prudent person";
The petitioning spouse justifiably relied on the misrepresentation; and
Once the petitioning spouse became aware of the misrepresentation, cohabitation ceased.
In this case, the Appellate Division (Third Department), stated that "'premarital falsehoods as to love and affection are not enough to warrant an annulment based upon fraud." Instead, the spouse seeking annulment must prove by "clear and convincing evidence" that the immigrant spouse committed fraud.
Therefore, in this specific case, the petitioning spouse needed to bring his "A" game before the trial court where production of evidence was concerned but apparently failed to do so. In particular, the Appellate Division stated that the petitioning spouse's proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife.
Additionally, the petitioning spouse failed to demonstrate that the marital break was due to any cause other than the general discontent and incompatibility of the parties.
What this means for the future is that persons seeking an annulment in New York should be careful to produce documents that do not merely show an unhappy relationship and discord, but proof of the sinister motives by the immigrant spouse to get married for the "sole purpose" of procuring permanent residence in the U.S. This is a "tough row to hoe."
Nevertheless, an immigrant defending against a malicious annulment claim should retain counsel with a deep familiarity with complicated U.S. immigration law and marital dissolution law. For the most part, state court judges in both New York and New Jersey are aware that annulment claims are frequently pursued to effectuate the ultimate deportation of the other spouse and will scrutinize such claims carefully to guard against any miscarriage of justice that may ensue.
The Appellate Division also addressed two other issues that are especially significant to immigrants faced with this situation.
First, the lower trial court apparently relied "too heavily upon the wife's belated filing of a family offense petition in another county." In other words, the trial court should not have found fraud to more likely have existed simply because the wife delayed seeking a restraining order against her husband.
Second, the trial court should not have taken a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act (i.e., "VAWA"). This means that immigrant spouses should not be afraid of pursuing legitimate VAWA claims on the basis that such claims cause their marriages to be annulled, thereby facilitating the initiation of deportation proceedings (i.e., Removal proceedings). If you would like to discuss an annulment or any other family immigration matter, please contact us here.
We assist countless foreign nationals and we will be happy to personally assist you with your application as well. Send us an E-mail or call us at (888)354-6257. For reasons on why you should consult an immigration attorney whenever you have an immigration issue, see our page titled: Reasons Why it is Vital to Use an Immigration Lawyer.
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