Types of Divorce: Fault v. No-Fault

Wedding cake split

Many people still seem to think that it’s better to get divorced using fault grounds rather than filing for a no fault divorce; and while many states no longer even have divorces based on fault grounds, there are still some states in which you can get a divorce based on adultery, cruelty, abandonment/desertion, addiction, or incarceration.

Even if the state you live in allows fault-based divorces, you should consider whether establishing fault makes any difference in your case. If you feel that you have been wronged by your spouse, you may think that it is your right or even an obligation to tell the judge that your soon-to-be-ex is a cheat, an addict, or he/she is crazy, but short of having psychological release by “airing things out,” you may not be deriving any actual benefit from having a fault-based divorce.

So many people wonder if the fault-based divorce is actually useful, and will establishing fault expedite the process of getting divorced? Will your spouse be punished, and if so, will that benefit you? Will you get a better deal in your marital settlement, or at least, will your emotional pain go away faster?

Unless the facts in your case are so extraordinary or so compelling as to make even the most hardened of judges feel sorry for you, most judges simply do not care as to who caused the end of the marriage. Also, it is not easy to actually establish alleged fault grounds for divorce. If both parties accuse each other of being at fault, the judge is faced with the “he said/she said” problem and may not know whom to believe. When that happens, judge will most likely ignore both sides’ allegations of fault and proceed with the rest of the case. If that happens, not only you will not gain anything, but you will waste more of your time, money and effort, and may even annoy the judge who (mind you) still has to decide the rest of the case.  Unless you have solid documented evidence, really consider whether it’s worthwhile for you to be hell-bent on assigning fault for the breakdown of your marriage.

Even if you can prove your spouse’s fault in court and the judge finds your spouse to be at fault – it is usually only one of many factors that are considered when dividing the marital property, awarding alimony, or determining custody. If somehow your spouse ends up being actually punished, for example for cheating on taxes; you may end up getting pulled into his/her drama too, or there will be less assets for you to share after the IRS seeks back taxes and interest. Should your spouse end up in jail, and you were hoping to collect alimony or/and child support, you can pretty much kiss that money good buy.

In comparison, a no fault divorce is exactly just that. It is a divorce in which the spouse filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse needs to do is to give a reason that the state honors to grant a divorce. The most common such reason is “irreconcilable differences” or an “irreparable breakdown of the marriage.” These pretty much mean that the parties no longer get along and that the marriage is over. While all states recognize no fault divorces, some require that the spouses live separately for a specified period of time before either of them can file for a divorce.

So rather than concentrating on establishing a fault, the emphasis should be on moving on with your life. Even if your spouse left you and you did nothing wrong, consider ending your marriage without accusations and blame, which will only make your spouse more defensive and may prolong the entire process.  As difficult as it may be during a divorce, think about the future and how you want to live your life post divorce. If you have children, chances are your spouse will somehow be still involved in your children’s life and you will have to maintain some kind of contact with your spouse. As such, ending your marriage without the unnecessary drama, will help all of you to recover sooner and to move forward.  Divorce is hard enough as it is, even the friendliest of divorces is still a divorce (breakdown of the marriage), so think hard (before filing) as to what type of divorce you want.

Note that even if you wish to part ways amicably, your spouse may file an Answer and still he/she may file a Counterclaim slapping you with a fault-based divorce.

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AG/BIA New Precedent Decision 10/12/2016

Matter of SILVA-TREVINO, 26 I&N Dec. 826 (BIA 2016)

The BIA concluded that the categorical and modified categorical approaches provide the proper framework for determining when a conviction is for a crime involving moral turpitude (CIMT). The BIA further found that unless the controlling case law of the governing federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical CIMT. Applying this framework to the respondent’s case, the BIA held that the respondent’s conviction for indecency with a child in Texas was not a categorical CIMT, and remanded the record for further consideration of his application for relief.

(1) The categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude.

(2) Unless the controlling case law of the governing Federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical crime involving moral turpitude.

(3) Under the “minimum reading” approach applied by the United States Court of Appeals for the Fifth Circuit, the respondent’s conviction for indecency with a child under section 21.11(a)(1) of the Texas Penal Code is not for a categorical crime involving moral turpitude.

(4) An alien who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion.

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Who Should You Name to Be Your Health Care Proxy?

A durable power of attorney for health care is a legal document naming a healthcare proxy, someone to make medical decisions for you if you can’t make them yourself. Your proxy, also known as a surrogate or agent, should therefore be familiar with your values and wishes. This means that he or she will be able to decide as you would when treatment decisions need to be made. A proxy can be chosen in addition to or instead of a living will*. Having a healthcare proxy helps you plan for situations that cannot be foreseen, like an accident.

Notice that a durable power of attorney for health care enables you to be more specific about your medical treatment than a living will.

Some people are reluctant to put specific health decisions in writing. For them, naming a healthcare agent might be a good approach, especially if there is someone they feel comfortable talking to about their values and preferences. That is why once you decide to choose a proxy, think about someone who shares your views and values about life and medical decisions. Note that your proxy doesn’t need to be a family member or a friend, but it definitively needs to be someone you absolutely trust.

* A living will is a written document that helps you tell doctors how you want to be treated if you are dying or permanently unconscious and cannot make decisions about emergency treatment. In a living will, you can say which of the available procedures you would want, which ones you wouldn’t want, and under which conditions each of your choices applies.

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Avoiding Immigration Scams

UPDATE: Lately immigrants all over the country are being targeted in phone scams. Scammers may call or email, pretending to be a government official. They say that there is a problem with an application or additional information is required to continue the
immigration process. They then ask for personal and sensitive details, and demand payment to fix any problems. Remember, USCIS officials will never ask for payment over the phone or in an email. If payment is needed, mail a letter on official stationery
requesting payment will be mailed out.

Whether you’re applying for or renewing a Green Card, becoming a citizen, or sponsoring a family member, immigration issues can be complicated and immigration mistakes can be costly.

Finding the right person to help you is just as important as finding out which forms to use and how to fill them out properly. There are many people and organizations offering immigration services; and you will see all kinds of newspaper ads, advertisements in store windows, or billboards. Some of these immigration providers will even call themselves immigration experts.  The reality is that few, if any of these people, even know the basics of immigration law, and help from people who don’t know the law or rules can hurt you. These people will charge you money, but they will not give you real help. Sometimes, they might even do something that will hurt your case later on.

Even people who mean well – a friend, a teacher, or a relative – can cause problems for you. Helpers like these should only write or translate what you tell them to, not give you advice on what to say or which forms to use. To get real help and legal advice, work with people who are actually qualified, not those who just pretend that they are qualified and know immigration law.

Watch out for dishonest people who may even charge you for blank immigration forms, say they have a special relationship with the government, or guarantee you results. They may promise to get you a winning slot in the Diversity Visa lottery if you pay a fee. They may charge you a lot of money to supposedly guarantee you benefits that you don’t even qualify for. They may tell you they know someone at the Consulate or Embassy who can get you valid papers for a “small fee.”

How to Avoid a Scam

  • Never pay for blank government forms. Government forms are free, though you’ll probably have to pay a filing fee when submitting them to USCIS.
  • Know that some scammers set up websites that look like they are run by the government, but they aren’t. Make sure that the website that looks like a government site ends with “.gov.” That means it is from the U.S. government.
  • Don’t let anyone keep your original documents, like your birth certificate or passport. Scammers may keep them until you pay to get them back.
  • Never sign a form that has false information in it. Never sign a document that you don’t understand.
  • You will get a receipt from USCIS when you turn in your paperwork. Keep it! It proves that USCIS received your application or petition. You will need the receipt to check on the status of application, so be sure you get a copy.
  • Understand that in the U.S., notarios or notaries public are not lawyers; they can’t give you legal advice or talk to government agencies for you.

How to Get the Right Help

Help is available, but there are rules about who can help you. Follow these rules to find help authorized by the U.S. government. Getting help from someone who’s not qualified to give you legal advice – like some immigration scammer – can be worse than not getting any help. Two main groups are authorized to give you legal immigration advice or represent you: lawyers and accredited representatives: 

Lawyers:

Lawyers can give you advice and represent you. Lawyers, also called attorneys, must be a member of the “bar” – the professional association in their state. The state bar association can discipline, suspend, or even expel a lawyer for breaking the rules. Be sure the lawyer you choose is in good standing with the bar association. That means they’re not in trouble for breaking the rules for lawyers.

There are enough lawyers living in this country for you to have little to no problem finding one that speaks your language, if you are not comfortable communicating in English.

Accredited Representatives:

Accredited Representatives are not lawyers, but are authorized by the government to give legal immigration advice. They also may represent you. These representatives must work for an organization that’s officially recognized by the US government. The names of both the accredited representatives and these recognized organizations are on a list kept by the Board of Immigration Appeals (BIA) at the Department of Justice.

Report Scams

Immigration scams are illegal. If you or someone you know has seen an immigration scam or been the victim of one, it’s important to report it to the Federal Trade Commission (FTC) or the attorney general of your state. Go to ftc.gov/complaint (or call 1-877-382-4357), or click on the map at naag.org o find out how to contact the attorney general in your state.

It cannot be stressed enough how important it is to work with a real immigration practitioner, or someone who knows immigration law.  And as everything else in life, if it sounds too good to be true, it probably is.  If someone promises you miracles, especially for an extra fee, chances are you’re being scammed or you are working with someone who has no clue what she or he is doing.

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Criminal Charges & Immigration Status

Criminal charges can create massive complications for immigrants. Even lawful permanent residents (green card holders) may be subject to removal, may be arrested and detained, or may end up denied naturalization because of a past criminal conviction, and some criminal matters do not even require conviction to trigger inadmissibility or deportability for an immigrant.

A criminal conviction could:

  • Subject you to deportation/removal proceedings without relief or the ability to file for a waiver
  • Subject you to arrest and mandatory detention
  • Make you ineligible to naturalize or renew your green card
  • Prevent you from obtaining residence
  • Affect your ability to travel and petition for other family members

A small sample of some of the most common deportable offenses include:

  • Theft, burglary, fraud offenses, money laundering and counterfeiting
  • Domestic violence and violations of certain protection orders
  • Unlawful possession of a firearm
  • Controlled substances offenses
  • Certain sex offenses, arson, racketeering
  • Deferred adjudications for any other deportable offense where there is a finding of guilt coupled with some punishment—that means dismissals may trigger deportability!

Expunged and vacated convictions may in certain circumstances be treated as convictions for purposes of immigration. Examples of certain criminal activity that can make a person deportable or inadmissible without a conviction are:

  • Holding oneself out to be a United States citizen (even just on a job application)
  • Where there is reason to believe a non-citizen either was or is a trafficker in controlled substances
  • Immigration fraud
  • Marriage fraud

As such, if you an alien or non-citizen who has been convicted of a crime it would be wise for you to consider talking to an attorney before you:

  • travel
  • apply for green card or naturalization
  • renew your green card
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United States v. Texas

Today the Supreme Court announced that it was deadlocked, four-to-four, on United States v. Texas aka the expanded DACA & DAPA case. As a result, Court issued a one-line non-decision that did not answer the vital question whether the president has the authority to set policy guidelines for the exercise of prosecutorial discretion in the deportation system.

In addition to deciding whether the president can set general guidelines for deferred action and the exercise of discretion to refrain from deporting an individual (temporarily); the Supreme Court was also expected to rule on when deferred action has been granted, can federal immigration officials exercise their statutory authority to grant employment authorization, so that those individuals can continue to support themselves and their families? According to the consistent practice of the executive branch, across administrations both Republican and Democratic, previously the answer to both questions has been “yes.”

But for now, based on a lawsuit by twenty-six states, the president’s exercise of this longstanding deferred action authority has been stopped. The decision of a single district judge, affirmed by two judges on the Fifth Circuit (over the dissents of two other Fifth Circuit judges in two separate appeals), will remain in place, leaving in limbo millions of parents of U.S. citizens and lawful permanent residents who met the eligibility requirements to apply for deferred action and work authorization under the president’s guidance.

But today’s decision/non-decision is likely not the last word. Whether the Justice Department files a petition for rehearing in the Supreme Court – and it very well could – the litigation will most likely continue.

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Tips for Cycling Safety

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May is a bicycle safety month!

Whether you’re an experienced or novice cyclist, always use common-sense to help you ride safely.

GEAR UP – According to the League of American Bicyclist, wearing a helmet is the single-best way to prevent brain injuries in the event of a crash. Ensure that your helmet fits properly; it should sit flat on your head and low on your forehead, measuring approximately two fingers’ width above your eyebrows and allowing only slight movement when you shake your head from side to side. Make sure your bike fits you now – not the size you aspire to be – after you clock a few century rides this summer. A properly fitted bike is just easier to control. Also, it should go without saying that your tires should be properly inflated; and everything from gears and shifters, brakes, chains, and lights/reflectors work.

Wear bright and reflective clothing so that motor-vehicle drivers can see you easily. Preferably also wear something that reflects light, such as reflective tape or markings, or flashing lights. Remember, just because you can see a driver doesn’t mean the driver can see you.

GO WITH THE FLOW – By law, bikes on the road are considered vehicles that must follow the rules of the road. That includes riding on the right, going in the same direction as motor vehicles, and yielding to traffic and pedestrians in crosswalks. Also, ride in predictably straight line (avoid swerving); look left-right-left before entering the street; and use hand signals when turning, merging and stopping. And, of course, never drink and ride.

 KEEP ALERT –  Watch for road hazards such as potholes, pebbles, wet leaves, broken glass, puddles, animals, and parked cars to avoid “getting doored” or surprised when a car suddenly pulls out.

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