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What does a no-fault state mean for divorce?

Los Angeles, CA |

I filed for divorce in California by filing the FL-100 Petition to end my marriage. The form does not give me the option to write my complaint, so even though I filed for divorce because I came to realize that my then husband used me for immigration purposes, I chose the "irreconcilable differences" option. I was asked by immigration later on about the complaint, so I answered by explaining that I could not put down fraudulent marriage as the complaint when the petition does not give any other option besides irreconcilable differences.

There is the annulment of marriage option, but I heard that you had to have hard core evidence that he entered the marriage with me for his green card otherwise the annulment option was futile. At that time, I did not have a factual evidence, but over the

months, I was able to gather a lot, which helped immigration to confirm the fraud. My question is whether there is a way to write the complaint in California for a divorce that I was not aware of? Wouldn't it be part of that FL-100 petition, since most people (without an attorney) would not be aware of the complaint part if they are told to file a FL-100 form, which lacks the complaint?

Attorney Answers 6

Posted

A no fault means; neither party has to have grounds or reasons to get divorced; mainly "affairs" play no role in the court ultimate judgment granting divorce. Annulment on the other hand is granted only if you prove sufficient grounds such as fraud, incestuous marriage, bigamy, etc. . Marrying someone for the sole purpose of obtaining residency in this country is considered fraud.

Factual evidence may include that you have not lived together, attended family gathering and holidays together, did not open joint bank accounts, etc. .

This response will not create an attorney-client relationship between you and Sarieh Law Offices, and is not intended to serve as a legal advice in your specific circumstances. This response is a legal opinion based solely on facts represented and you should not rely on this legal opinion as a legal advice. You still need to consult an attorney directly to fully protect your legal rights.

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Asker

Posted

That's the case actually. We did live together for 11 months until he got his conditional green card and took off with excuses after which I filed for divorce. No joint bank accounts either. He pretty much used me, but I did this divorce alone and through research because we had no assets or kids together, so I figured that why pay a lawyer to fill to a few forms for me, which I could do myself. So will the divorce route I took instead of the fraud raise questions for the immigration judge when reviewing my ex's immigration fraud? Or it should not be an issue, since many people who have been use take that route too? It's just I was told that taking the annulment route is going to be a big headache for me and I might not even convince the judge that it was fraud. With all the evidence I have now, I would have succeeded, but not before. Thanks.

Wail Sarieh

Wail Sarieh

Posted

It is true that annulment actions are big headaches if contested; you need to prove a basis for the annulment that you would not need otherwise in a divorce action. Practically speaking, you may have made the right choice. However, if you want to stand for the principle, you should have filed an annulment, which you can still do by amending the pleadings.

Asker

Posted

the divorce has finalized some months ago (((

Posted

"No-fault" is really a misnomer; it is more properly addressed as an "Uncontested divorce". The "irreconcilable difference" language is a sort of catch-all that blames no one and speaks to the deteriorated state of the relationship. The best candidates for an uncontested divorce are parties in a marriage of short duration, have no children and have no assets or debt to divide.
Your question addresses very specific substantive and procedural issues which are beyond the scope of our ability to address in this forum. You should consult with an attorney in your area to address your specific concerns.

This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney

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Estela Matta

Estela Matta

Posted

You should also know that all 50 states now have adopted some form of "uncontested Divorce" as an option for dissolution of a marriage. While each state has constructed their own statutes, they essentially all allow for an application for divorce that is not based on some fault or wrongful conduct of the other party.

Lee Alan Thompson

Lee Alan Thompson

Posted

In Ohio, it's a little than some other states. We can do a dissolution of marriage but only if both parties agree to very thing, including the kids if applicable. But if one person says no at any point, including at the final hearing, dissolution of marriage is out the window and that leaves divorce. We allow in a divorce the use of incompatibility, which many attorneys mistakenly refer to as a ground, it's really a status but, the incompatible people to agree they are or the divorce won't be granted. So, we kinda have it in Ohio and kinda not. It depends solely on the parties involved.

Posted

California is a "no fault" divorce state, meaning that you can get a divorce simply by saying that you and your spouse can't get along ("irreconcilable differences"). You do not have to prove that your spouse actually did something wrong -- hence the "no fault" terminology.

Annulment is a different story. Unlike divorce, which dissolves a marriage, an annulment declares a marriage to be null and void, as if the marriage never happened. A person seeking annulment must prove the reason for annulment, such as fraud. An example of fraud would be, as in your situation, getting married purely to obtain a green card. Annulments also have a deadline for filing, unlike divorces. In a case of fraud, the person seeking annulment must file within 4 years from the time she discovered the fraud.

It sounds like the reason you chose to file for divorce was because, at the time, you had not uncovered enough evidence to pursue an annulment (based on fraud). If your goal was to ensure the end of your marriage, it is understandable you wanted to take the more guaranteed route.

Reading between the lines, it sounds like you might be worried that, because you got a divorce rather than an annulment (based on immigration fraud), your ex may "get away with" this. While an annulment based on immigration fraud might have made a more obvious indication of your ex's intentions, your divorce certainly does not help your ex's case. If the USCIS is already investigating, the divorce may prompt deeper scrutiny.

You may want to pose your questions to an immigration attorney, as well. He/she might be better able to advise you about the effect of your divorce (and not annulment) on your ex's immigration and the fraud investigation. I'm sorry to hear about what you're going through. Good luck!

Katherine C. Wu, Esq. is licensed to practice law in the State of California. Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship with Katherine C. Wu, Esq. To schedule a consultation, please call (925) 357-0431. www.tinatranlaw.com Thank you.

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Asker

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Thank you very much for this response. You answered my question and I am glad to know that just because I got a divorce, it won't be looked at less negative than the annulment. Like I said, lots of evidence were obtained only many months later, so if I was getting the annulment right now, I would have won, but before, it was going to be my words against his, which did not give me much confidence and I also did not want to waste months over the uncertain annulment, but rather end the marriage as quickly as possible. Have a wonderful evening. P.S. You've been marked as "helpful."

Posted

It means that the Court does not care why you are getting divorced, only that you want one because of irreconcilable differences. In some other states, you have to prove who did what to whom, and it gets very "Jerry Springerish." Here, the only three issues potentially in front of the Court are 1. division of assets and debts, 2. custody and visitation of children, and 3. child and spousal support.

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Posted

A "No-Fault" state means that the law allows a divorce petition on the grounds that neither party is to blame for the divorce. Typically the language used in the law of the state is that you state the "No-Fault" grounds as being that "irreconcilable differences have arisen between you and your spouse such that these differences cannot be remedied and they have caused the irremediable breakdown of your marriage." In the proceedings themselves the court generally does not want to hear statements of "blame" of one against the other if it is what is known as an "uncontested" divorce where the parties have worked out all of their divorce issues within the bounds of the laws of their state. Thus, at the hearing the party (or parties) requesting a divorce typically state something to the effect that they found that they are incompatible, did not get along, grew apart, had arguments, and were simply unable to continue living as husband and wife. Language such as this goes along with the concept of "No Fault" where the reasons are generalized and neither party is stated in open court to have "caused the marriage to break down" or "been at fault for the breakdown of the marriage." In this case the burden is usually that the party seeking the divorce needs to meet the requirements of the state for residency, testify to the marriage, and testify that there was one or more differences that was (or were) irreconcilable such that the person(s) requesting the divorce (one or both parties) could not continue to live as husband and wife.

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Posted

I agree with all the answers above. No-fault simply means that the reasons for the divorce are not contested. This means that the court cannot refuse to allow a person to dissolve their marriage as the court used to be able to do. A person does not need a reason to dissolve the marriage beyond what is termed "Irreconcilable differences".

Please consult with an attorney. This answer does not create an attorney-relationship.

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