WHEN IS A DIVORCE NOT A DIVORCE? The recognition of non-judicial and customary divorces and its impact on those seeking marriage-based immigration benefits.

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This paper will examine the basic principles applied to the recognition of international divorces and then look at how these principles are applied, or modified, in the context of immigration law. Many thousands of immigrants each year come to the United States as the spouse of someone who is already a United States Citizen or Lawful Permanent Resident and issues surrounding the proof of a valid marriage include the burden of proving the legal termination of all prior marriages of both parties. For many immigrants from countries with radically different traditions surrounding divorce, changes in marital status made many years before contemplation of emigration to the United States can come back to cause problems. Customary and consent divorces, which have freed them to remarry at home, are often not recognized by United States Immigration and Citizenship Services (“USCIS”, formerly the “INS”. References to both USCIS and INS throughout this paper refer to this same agency.), which oversees adjustment of status to lawful permanent resident within the United States, or the Department of State, which oversees the many embassies and consulates which issue immigrant visas. In 1997, spouses of United States Citizens accounted for 21% of all immigrants or 170,263 individuals. This number does not include spouses of lawful permanent residents, who are not counted separately from other family members (but who doubtless account for a significant number of the 113,681 additional spouses and minor children of lawful permanent residents admitted that same year).After establishing the basic principals that apply to domestic relations law in general, and to immigration law in particular, a number of illustrative cases will be presented from both areas, including analyses of state (including North Carolina) and immigration law.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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