Remarriage when your spouse disappears?

I come across a least a few times a year the situation where one of my clients has been married multiple times and now wishes to sponsor an immigrant spouse in their latest marriage that doesn’t have all of the divorce decrees or death certificates from prior spouse is to show that they have the legal right to marry the immigrant in their latest marriage.  The US citizen petitioner typically has two or three divorce decrees but in one of the marriage is somewhere in between these decrees, they either for that to file for divorce or didn’t file at all because their spouse just disappeared.  Without either a divorce or death decree from a prior marriage, U.S. Citizenship and Immigration Services (CIS), the agency in charge of granting the green card to the immigrant spouse, is likely to conclude that the current marriage to the foreign national is legally invalid and bigamous because the US citizen petitioner never got divorced from their prior spouse who disappeared. 

In a state of California, for example, the family code has a special provision for this “presumed dead” spouse situation.  If the US citizen or permanent resident petitioner believed that their former spouse was dead, any marriage entered into after this (with the immigrant, for instance), would be considered valid as it is not automatically void – it is voidable.  

When a marriage is voidable as opposed to void, the marriage remains valid until a formal nullity decree is granted by a family court judge.  Logically, the only person who would bring a nullity action, though, to invalidate the later and current marriage to the immigrant would be the former spouse who has since disappeared.  This would only make sense if the former spouse all of a sudden arose from the dead or came back after years of disappearing and wanted to keep their marriage intact.

Therefore, if this never happened (no nullity action was ever brought in court), the subsequent marriage to the foreign national is considered legal despite the absence of a divorce decree from the prior wife.  CIS recognizes voidable marriages as valid.  Always consult a family lawyer when determining if your situation falls within this loophole in California as there are certain requirements under the statute that must be met.  If you’re outside of California, there may be a similar family law provision or case in your state that may allow you to benefit from a disappearing spouse.