Do You Need to Re-Divorce Your Ex Spouse in Massachusetts If You Divorced Abroad? Maybe.

AGAIN?? Again. But this time it should be easy.

The short answer is yes, if you divorced your spouse abroad when you were both living in Massachusetts, and the marriage broke down in Massachusetts.

Like many things in the law, there is no bright line separating a valid foreign divorce from an invalid foreign divorce. Massachusetts General Laws Chapter 208, section 39 states, “[I]f an inhabitant of this commonwealth goes into another jurisdiction to obtain a divorce for a cause occurring here while the parties resided here…a divorce so obtained shall be of no force or effect in this commonwealth.” The keys here are that the couple needs to be residing in Massachusetts at the time of divorce, and the cause needs to arise in Massachusetts in order for Massachusetts to recognize jurisdiction over any divorce action. It is not enough to be passing through the commonwealth on a one week vacation and get into one last disagreement with one’s spouse; although the cause of the divorce occurred in Massachusetts, the couple did not reside here at the time. Likewise, if the cause of the divorce is an act that occurs in the state or country where the couple previously lived, then Massachusetts would not recognize jurisdiction over the divorce. However, if Massachusetts recognizes jurisdiction over the divorce, it will not recognize a foreign judgement of divorce, even if the judgement is valid in the foreign jurisdiction.

It can get confusing, particularly when a couple married in a country that recognizes divorce by proxy, that is, divorce without either of the parties present, but only one or two attorneys, but currently resides in Massachusetts when one or both spouses decide to divorce. It may seem like divorcing in the same nation that performed the marriage is the right course of action, particularly if assets are still there, like a home or bank accounts. However, if the couple is living in Massachusetts, and the breakdown of the marriage occurs here, Massachusetts recognizes its courts as having jurisdiction over divorce proceedings. The consequence is that the state will not recognize a divorce obtained by proxy in a foreign country if the parties were living within Massachusetts when they obtained the divorce. The tricky bit is that the foreign divorce is valid if obtained in a country that permits divorce by proxy. Any property divided by that divorce in that country is validly divided, and the parties are divorced according to the laws of that country. But not the laws of Massachusetts. Massachusetts still considers the parties to be married.

The complication:

Any marriage subsequently entered into by either party in Massachusetts won’t be valid. This detail is often missed by the remarrying spouse at the time, because he or she believes him or herself to be divorced. Which is true! But not in Massachusetts.

The real problem usually arises when the second marriage needs to be valid because the one of the newlyweds is relying upon it in his or her Green Card application. The United States Citizenship and Immigration Services (USCIS) will not recognize the new marriage as a valid basis for a Green Card application, because Massachusetts considers one of the spouses to be married to his or her former spouse. Already-married individuals cannot legally marry another person in the state of Massachusetts. For the person in this situation, his or her immigration status is in peril, and that is a serious problem.

The solution:

The solution in this situation is for the divorced couple to re-divorce in the Massachusetts courts. The process is relatively painless, because the substantive issues at stake were probably worked out between the couple during the proxy divorce. In most cases, a joint petition for divorce can be filed with a full Separation Agreement covering all of the legal issues impacted by the divorce process, and the divorce can usually be finalized in one hearing. After the Massachusetts divorce is final, the newlyweds can petition the court to recognize the validity of their marriage, or remarry. This will greatly increase the chances that the Green Card application will be successful.

If you need an attorney to help you obtain a valid divorce in Massachusetts to clear your path towards permanent residency, set up a call with me.

About the Author:  Elizabeth Dann, Esq. is a family law attorney practicing in Natick, Massachusetts. She is a divorced, single mother of three children who loves soy cappuccinos, plant-based food, and karaoke.

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