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Aliens and divorce -
Overcoming Marriage Fraud
The Immigration and
Naturalization Service has always had a concern that
aliens seeking permanent resident status in the
United States will marry solely to gain that status,
thereby circumventing the Immigration Laws. This
concern was addressed by Congress in the Marriage
Fraud Act of 1986, as amended by the Immigration Act
An attempt to gain resident status without a bona
fide marriage is marriage fraud. A finding of
marriage fraud can lead to the denial of the
issuance of an immigrant visa, refusal of admission
as a conditional or permanent resident, the loss of
resident status previously granted, and deportation
from the United States. Lawyers must consider the
special needs of aliens in divorce, separation or
annulment matters. Accordingly, attorneys must know
the applicable sections of the Immigration Law that
deal with marriage fraud in order to understand the
severe repercussions to any alien who is accused of
In order to assist the practitioner, this article
will include a glossary of frequently used terms in
U.S. Immigration Law:
INS: Immigration and Naturalization Service
INA: Immigration and Nationality Act
Alien: Anyone who is not a U.S. citizen is an
Immigrant: An alien who intends to reside
permanently in the U.S.
Non-Immigrant: An alien who intends to visit,
live or work temporarily in the U.S.
Permanent Resident Alien: An alien who is
admitted by the Immigration Service to enter the
U.S. in order to reside permanently.
Conditional Resident Alien: An alien who
receives resident status based on a marriage of less
than two years to a U.S. citizen. In order to become
a permanent resident alien, the alien and their
spouse must file a joint petition with the INS
within 90 days of the second anniversary of the day
the INS granted conditional resident status.
Naturalization: The process of acquiring
citizenship for anyone who did not become a U.S.
citizen by birth.
Green Card: A green card is actually an alien
registration receipt card given to aliens after they
have acquired resident status in the U.S. It covers
both conditional and permanent resident aliens. The
card used to be green but is now rose- colored.
Immigrant Visa: A document package issued by
a U.S. consul abroad that an alien presents at the
U.S. border to be admitted as a conditional or
Illegal Alien: This is a non-technical and
usually inaccurate term with a negative inference.
Usually, this refers to people who entered the U.S.
without being inspected and admitted in legal status
by the U.S. Immigration Service.
Deportation: An alien who never acquired or
who loses legal status inside the U.S. is subject to
deportation by the INS. Deportation is a civil
procedure to remove aliens from the country.
INA Section 204 (c): This Section bars the
approval of any permanent residence petition for any
alien deemed to have acquired permanent status based
upon a fraudulent marriage including an alien who
never married but attempted to do so to gain
permanent alien status.
INA Section 216: This Section sets out
applicable definitions and rules regarding marriage
Conditional resident status is conferred on an alien
to a United States citizen or a lawful permanent
resident in a marriage deemed bona fide although
less than two years old. The status is conditional
for another two years. If the marriage is more than
two years old at the time of application for status,
the alien can be approved for lawful permanent
status without any condition.
The U.S. citizen or a permanent resident alien may
petition for their alien spouse to receive an
immigrant visa. An alien with an approved immigrant
visa petition may be issued an immigrant visa by a
U.S. consular post abroad and use the visa to be
admitted to the U.S. as a permanent resident. Also,
some aliens already in the U.S. may use an approved
immigrant visa petition to gain permanent resident
status through adjustment inside the U.S. The INS
will interview the couple to determine the bona
fides of the marriage. This status, however
acquired, is a very important step for any alien
seeking to remain in this country.
Conditional resident status becomes permanent after
the second anniversary of conditional resident
status if the alien and the petitioning spouse
jointly file a I-751 petition signed by both
parties. This is filed within ninety days of the
second anniversary of the granting of conditional
resident alien status. Thereafter, they are
interviewed by an INS examiner to see if their
marriage is legitimate.
If an I-751 joint petition cannot be filed, the
conditional resident alien may request a waiver
based on one or more of the following grounds:
extreme hardship if deported, termination of a good
faith marriage, or battered spouse or child ground.
The good faith waiver requires that the qualifying
marriage was entered into in good faith by the alien
spouse, the alien was not at fault in failing to
meet the requirement of filing the joint petition,
and the qualifying marriage was terminated other
than through the death of the petitioning spouse.
The battered spouse or child waiver must show that
during the marriage the alien spouse or child was
battered by or was the victim of extreme mental
cruelty by the U.S. citizen or permanent resident
spouse or parent. The waiver for a battered spouse
does not require that the qualifying marriage be
It should be noted that the first and third elements
are the same for both grounds. Attorneys
representing an alien in a divorce must be concerned
with the statutory jurisdictional requirements and
the necessity for alleging grounds in a divorce
New York, unlike other states (such as California),
does not grant divorces based on irreconcilable
Domestic Relations Law (DRL) Section 170 sets forth
the grounds for matrimonial actions:
- Cruel and inhuman
treatment--DRL Section 171, 170(1);
- Abandonment--DRL Section
- Imprisonment--DRL Section
- Adultery--DRL Section 174;
- No-Fault--Conversion of a
prior written separation--DRL Section 170(5) and
DRL Section 171--Cruel and
inhuman treatment ground for a divorce has produced
the most litigation on the standard of proof needed
to establish a cause of action. The Trial Court has
broad discretion to grant or deny a divorce on the
ground of cruelty. Brady v. Brady, 64 N.Y.2d 339,
486 N.Y.S.2d 891 (1985). A lesser degree of proof is
required for short-term marriages compared to
long-term or "vintage marriages."
A high degree of proof is required with respect to
the grounds of cruelty where there is a vintage
marriage. Hessen v. Hessen, 33 N.Y.2d 406, 353
N.Y.S.2d 421 (1974); Brady v. Brady, 64 N.Y.2d 339,
486 N.Y.S.2d 891 (1985).
In a short-term marriage, lesser conduct will
constitute cruel and inhuman treatment. See Steiner
v. Steiner, N.Y.L.J., 4-4/8/85 at 14, COL.5 [Sup.
Ct., Richmond County]; Reiss v. Reiss, N.Y.L.J.
2/26/91 at 29, col.1 [2nd Dept.]; Rieger v. Rieger,
161 A.D.2d 227, 554 N.Y.S.2d 613 (1st Dept. 1990).
For a vintage marriage, conduct must be viewed in
the context of the entire marriage, including its
duration and whether particular actions can properly
be labelled "cruel and inhuman." See Brady v. Brady,
64 N.Y.2d at 345, 486 N.Y.S.2d at 894.
The bottom line evidentiary requirement to obtain a
divorce on the grounds of cruel and inhuman
treatment is, "... conduct by the defendant which is
harmful to the physical or mental health of the
plaintiff which makes cohabitation unsafe or
improper ..." Brady v. Brady, 486 N.Y.S.2d, 891 (Ct.
What types of behavior satisfy this standard, and
what nature of cruelty is required for grounds? Some
examples are: (a) physical violence, verbal abuse,
or the threat of violence; See Pfeil v. Pfeil, 100
A.D.2d 725, 473 Misc.2d 629 (4th Dept. 1989); (b)
emotional abuse, which can include emotional
abandonment; See Siczewicz v. Siczewicz, 92 A.D.2d
915, 460 N.Y.S.2d 130 (2nd Dept. 1983); (c) sexual
infidelity and disclosure of adultery to spouse; See
Fritz v. Fritz, 88 A.D.2d 778, 451 N.Y.S.2d 519 (4th
Dept. 1982); false accusations of infidelity; See
Wilbourne v. Wilbourne, 173 A.D.2d 289, 569 N.Y.S.2d
680 (1st Dept. 1991); alcohol abuse; See Weilbert v.
Weilbert, 115 A.D.2d 473, 495 N.Y.S.2d 707 (2nd
Dept. 1985), compulsive gambling--Reiss v. Reiss,
N.Y.L.J., 2/26/91 at 29 col.1 (2nd Dept.). It is
important to note of these examples that some may be
insufficient standing alone but can be sufficient to
satisfy the standard for cruel and inhuman treatment
when coupled with incidents of any of the other
When attempting to decide if one spouse has treated
the other in a cruel and inhuman manner, courts will
take into account whether the complaint involves a
course of conduct or a pattern of actual behavior
rather than isolated incidents of behavior. Other
factors courts look at include the seriousness,
manner, duration, extent, and effect of the
behavior, as well as the length of the marriage.
Regarding situations which do not satisfy the
evidentiary standard for a divorce based on cruel
and inhuman treatment, there is the seminal case of
Hessen v. Hessen, 353 N.Y.S.2d 421 (Ct. App. 1974)
wherein the court set out that the cruel and inhuman
treatment ground will not be applied to every "dead"
It is important to note in Hessen that the court
noted that the length of a marriage is a factor that
will be taken into consideration when a divorce is
sought on the grounds of cruel and inhuman
treatment. Also, certain behaviors that, in a course
of conduct within a short-term marriage, could
satisfy the standard for cruel and inhuman treatment
will very possibly not be sufficient to satisfy the
cruel and inhuman grounds standard to obtain a
divorce in a vintage marriage. Other conduct which
is insufficient to grant a divorce on the grounds of
cruelty include (1) irreconcilable differences; See
Tsakis v. Tsakis, 110 A.D.2d 763, 488 N.Y.S.2d 51
(2nd Dept. 1985); (2) lack of communication and/or
sexual intimacy; See Green v. Green, 127 A.D.2d 983,
513 N.Y.S.2d 49 (4th Dept. 1987); (3) isolated
incidences standing alone; See Wenderlich v.
Wenderlich, 34 A.D.2d 726, 311 N.Y.S.2d 797 (4th
It is imperative that an effect on a victim's
physical or mental well being be shown. See Forcucci
v. Forcucci, 96 A.D.2d 751, 461 N.Y.S.2d 320 (4th
Dept. 1983). The Court does consider whether a
client has sought mental or psychological
assistance, although collaboration by medical proof
or testimony of other witnesses is not required. See
Green v. Green, 127 A.D.2d 983, 513 N.Y.S.2d 49 (4th
It is also important for the matrimonial
practitioner to ensure that the residence
requirements of DRL Section 230 are met. An alien is
not barred from acquiring a domicile in New York
State for purposes of maintaining an action for
divorce. The sole purpose of DRL Section 230 is to
assure that New York has sufficient interest in the
marriage to entertain an action to dissolve it and
adjudicate the rights of the parties. See Lacks v.
Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, Rearg.
denied, 41 N.Y.2d 901, 393 N.Y.S.2d 1028 (1977).
The five bases for jurisdiction under DRL Section
230 are as follows:
- the parties were married in
the State and either party has been a resident
when the action is commenced and has been a
resident for a continuous period of one year
immediately preceding the action--DRL Section
- the parties have resided in
this State as husband and wife and either party is
a resident when the action is commenced and has
been a resident for a continuous period of one
year immediately preceding the action--DRL Section
- the cause of action
occurred in this State and either party has been a
resident for a continuous period of at least one
year immediately preceding the action--DRL Section
- the cause occurred in this
State and both parties are residents at the time
of the commencement--DRL Section 230(4); or
- either party has been a
resident of this State for at least two years
immediately preceding the commencement of this
action--DRL Section 230(5).
The threshold problem
confronting aliens desiring to pursue a matrimonial
action is the ability to satisfy the "term
residence" as set forth in DRL Section 230 and 231
in order to enable the court to obtain jurisdiction.
Many of these issues were directly addressed in the
case of Coran v. Coran, 84 Misc.2d 335, 375 N.Y.S.2d
797 (Sup. Ct. Kings County 1975). The "concept of
residence" satisfies "domicile" as required in DRL
Section 231. Actually, "domicile," under 231 is
being construed as equivalent to "residence" under
common law construction. The term "residence" has a
broader meaning than it has had in the past, useful
The former Immigration Act of 1990 conditioned the
filing of a "marriage terminated" waiver on the
conditional resident alien being the moving party in
the matrimonial. This is no longer required if the
marriage was entered into in good faith.
When representing an alien in a matrimonial action,
if cruel and inhuman treatment is the ground sought,
it is important to draft a complaint carefully and
to include information and examples that will enable
you to meet the evidentiary standard as previously
set forth without raising a question of the bona
fides of the marriage. This specificity standard set
out in CPLR Section 3016(c), which states, "in a
separation or divorce action, the nature and
circumstances of a party's alleged misconduct, if
any, and the time and place of each act complained
of, if any, shall be specified in the complaint or
counterclaim as the case may be." CPLR 3016(c)
should be flexibly construed so as not to preclude a
meritorious action. See Pfeil v. Pfeil, 100 A.D.2d
725, 473 N.Y.S.2d 629 (4th Dept. 1984).
Also, fraud in the inception of the marriage is
grounds for an annulment. An allegation of marriage
fraud may be made to obtain an annulment by the
spouse of an alien who gained legal resident status
through the marriage. It is especially important
when representing a conditional resident alien, but
also important for permanent resident aliens against
whom an annulment on the basis of fraud is sought,
to successfully defend as zealously as possible
against such grounds. Conversely, in the case where
representing a U.S. citizen who wishes to assert
fraud as grounds for annulment, it would be wise to
counsel such a client on the possible damage and
repercussions, including criminal liability of a
marriage fraud allegation. Try to discern the
motivation for such allegation. In such a case, it
would also be important to inform the U.S. citizen
that if they had any knowledge of an alien's
intention to marry in order to gain legal resident
status and that citizen participated knowingly in
the sham marriage, criminal provisions subject U.S.
citizen co-conspirators to felony prosecution under
18 USC Section 1001.
Finally, some precedent holds that an alien who is
found guilty of marriage fraud may also be liable
for money damages to his spouse. See Gubin v.
Lodisev, 494 N.W.2d 782 (Mich. App. 1992).
To conclude, it is imperative that practitioners are
sensitive to the unique exposure aliens have in a
divorce action. Their special needs should not be
ignored, and it is hoped that this article will
assist practitioners in the representation of aliens
and their spouses as well.
ABOUT THE AUTHOR
Ms. Venzon graduated from the
University of Buffalo Law School in 1982 and was
admitted to the New York State Bar on February 15,
1983, and admitted to the Federal District Court for
the Western District of New York in 1985 and the
District of Columbia in 1986. She has participated
as a guest speaker at a recent Appellate Division
Training Seminar. In addition, Ms. Venzon has
appeared on public radio to discuss child support
collection and other related issues. Ms. Venzon
established the law firm in 1984.
She can be contacted by phone at (716) 854-7888 or
email her at
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