Common law marriage and separation? Does she still need to select "Yes" to the question "Have you been previously married?" Please read below

[taknev 10]

So my fiance (petitioner) was common-law married to her then ex. from 2010 to 2015. They filed taxes jointly back in 2014. They split in 2015. However, upon checking, she found that there's no record of their marriage. Does she still need to select "Yes" to the question "Have you been previously married?"? 

[igoyougoduke 1,614]

USCIS recognizes common law marriages as long as it was legal in the location of the marriage. answer is YES 

Edited December 7, 2020 by igoyougoduke

[taknev 10]

27 minutes ago, igoyougoduke said:

USCIS recognizes common law marriages as long as it was legal in the location of the marriage. answer is YES 

Unfortunately, we selected No because there was no record of her marriage. Any idea what to do next? Reapply for K1? 

Edited December 7, 2020 by taknev

[designguy 1,179]

4 minutes ago, taknev said:

Unfortunately, we selected No because there was no record of her marriage. Any idea what to do next? Reapply for K1? 

If they were not legally married (IE signed a marriage certificate) they are not married and you correctly selected No

[designguy 1,179]

32 minutes ago, igoyougoduke said:

USCIS recognizes common law marriages as long as it was legal in the location of the marriage. answer is YES 

If they select yes then they will need to provide proof that the previous marriage was terminated or the spouse died. For common law relationships there is no such thing as divorce. There have been a few threads in recent days where this specific issue has gotten people into heaps of almost irrevocable trouble

[Boiler 43,760]

Canada does not have common law marriage

[Lemonslice 4,593]

However, common law relationships are recognized (with some legal benefits and responsibilities, depending on the province).  Just different than a marriage.

 

7 minutes ago, Boiler said:

Canada does not have common law marriage

 

[Boiler 43,760]

Does not ask about relationships

[designguy 1,179]

12 minutes ago, Boiler said:

Canada does not have common law marriage

Im re-reading the OPs original post and I am actually thinking this case might not be so clear. It seems its actually the American petitioner not the Canadian who was in the common law marriage. Potentially in Colorado (?) which legally recoginizes them, and the fact that they filed taxes jointly may become a problem. It seems OPs fiance may need to get a legal divorce from the prior common law spouse

 

Quote

Colorado does not have a common law dissolution, so for a common law married couple to legally end their relationship, they need to use the same laws that a couple with a certificate would to divorce. When one person in a common law marriage files for common law divorce, the court will first determine whether a common law marriage existed, and this can be evidenced using many things. Insurance papers, tax returns and other documents can be used, for example, to show that a common or hyphenated last name was used. Friends and family members may have to testify as to the parties’ behavior as a married couple. Evidence of a common law marriage is important, particularly when one person is disputing the existence of a marital relationship.

https://burnhamlaw.com/help-center-articles/common-law-divorce/#:~:text=Colorado does not have a,a certificate would to divorce.&text=Once the court recognizes the,the common law divorce process.

Edited December 7, 2020 by designguy

[taknev 10]

2 minutes ago, designguy said:

Im re-reading the OPs original post and I am actually thinking this case might not be so clear. It seems its actually the American petitioner not the Canadian who was in the common law marriage. Potentially in Colorado (?) which legally recoginizes them, and the fact that they filed taxes jointly may become a problem. It seems OPs fiance may need to get a legal divorce from the prior common law spouse

 

https://burnhamlaw.com/help-center-articles/common-law-divorce/#:~:text=Colorado does not have a,a certificate would to divorce.&text=Once the court recognizes the,the common law divorce process.

 sorry for the confusion - my American fiance (who's the petitioner) is the one who was in a common-law marriage that ended in 2015. She said that there's no record of their marriage so she didn't have to get an official divorce and that's the reason why she selected "No" to the question. 

[Lemonslice 4,593]

2 minutes ago, Boiler said:

Does not ask about relationships

I misread, it seems that OP's partner is the US citizen.

 

[If they are/were Canadian, then the confusion might be that they were filling taxes together, which must be done in a common law relationship.]

[designguy 1,179]

2 minutes ago, taknev said:

 sorry for the confusion - my American fiance (who's the petitioner) is the one who was in a common-law marriage that ended in 2015. She said that there's no record of their marriage so she didn't have to get an official divorce and that's the reason why she selected "No" to the question. 

Did they file their taxes as "Married, filing jointly"?

Edited December 7, 2020 by designguy

[Boiler 43,760]

In Colorado a Court would need to have determined a Common Law Marriage existed.

[Boiler 43,760]

6 minutes ago, taknev said:

 sorry for the confusion - my American fiance (who's the petitioner) is the one who was in a common-law marriage that ended in 2015. She said that there's no record of their marriage so she didn't have to get an official divorce and that's the reason why she selected "No" to the question. 

if that was so a Court would have been involved to end it and there would be documentation.

[designguy 1,179]

IMHO after digging a little bit you should at minimum contact a lawyer for peace of mind. The fact that a joint tax return was filed could lead to problems in terms of your partner being found ineligible to marry. Who knows what access USCIS has to IRS tax information and the second they see any documents where the petitioner filed as "married" its going to raise a flag.