Divorce wasn't actually final before new marriage: Can I become a U.S. citizen?

Accidental bigamy need not bar approval of your application for naturalization, with the right follow-up steps.

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Question

I’m a legal permanent resident (LPR) and I just discovered that my first wife never actually completed the paperwork for our divorce. I signed everything she sent me, and so I assumed we were divorced. It wasn’t until I needed to find the date of our divorce for my N-400 naturalization application that I learned that my ex never finished the job. The biggest problem is that I married someone else three years ago. Can I become a U.S. citizen? I’m worried, because there is a question on the N-400 form that asks if I’ve ever been married to more than one person at the same time.

Answer

The good news is that this type of mistake happens so often that there is a name for it – “accidental bigamy.” In most states — but not all — it isn’t even a crime, so long as you reasonably believed that your divorce was final. The better news is that once your divorce really is final, the fact that you were accidentally married to two people at the same time will not be enough by itself to cause your naturalization application to be denied.

As you noticed, there is a question on the N-400 form that asks if you have ever been married to more than one person at the same time. And you will need to answer this question honestly – “yes.”

By asking this question, U.S. Citizenship and Immigration Services (USCIS) is seeking information on three different potential problems.

The first potential problem is that immigration law bars people who are practicing polygamists from becoming naturalized U.S. citizens. The USCIS policy manual defines polygamy as “the custom of having more than one spouse at the same time.”

The second potential problem is that bigamy is a crime that will bar a finding of good moral character, which is required for naturalization.

The final scenario that this question addresses is that of legal residency obtained through an invalid marriage: Where an applicant who obtained residency through marriage was not legally married to a U.S. citizen spouse, because he or she was already married to someone else.

Any one of these problems will be grounds for denial of an N-400 application.

In your case, you are not a polygamist, because although you were married to two women at the same time, this was not a deliberate choice to practice polygamy, and you were in fact not living with both women at the same time.

The fact that you could technically be accused of bigamy means that the USCIS examiner will ask more questions, and you will need to have a reasonable explanation for why you didn’t follow up to make certain the divorce was final. If you have children from that first marriage, you will need to explain how you supported them economically without a final decree of divorce.

According to the USCIS examiner’s manual, if you are guilty of the crime of bigamy, your application should be denied due to a lack of good moral character. Fortunately for you, the crime of bigamy normally requires the intent to be married to two people at the same time. In your case, you did not intend to be married to two people at the same time. It is unlikely that USCIS will be able to argue that your failure to properly check to see if your divorce was actually final constitutes a failure of good moral character – especially given how frequently this happens to other people.

If you want to be certain that accidental bigamy is not a crime in your state, you should consult a local attorney.

You will also very definitely need to finalize the divorce, and possibly get remarried to your current spouse before you file your N-400 application. In fact, it is likely that the second biggest legal issue you will face – which doesn’t directly impact your citizenship application -- will be determining whether your current marriage is void (completely illegal) or merely voidable (only illegal if your current wife goes to court to charge you with bigamy). This will depend on your state’s law.

In some states, you don’t even have to remarry: Finalizing the first divorce makes the second marriage legal automatically. In other states, you will need to remarry your current wife in order for that marriage to be legal. If your current wife is an immigrant, and you will be petitioning for her, the best counsel is for you to remarry before filing that petition with USCIS.

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