My spouse is an immigrant from the UK. We have been living apart for the last 12 months due to infidelidty. We are due to send in the form that states the status of the marriage. I need advice on how to proceed with the divorce, the division of property/assets, the form that the immigration services need....ie, if the spouse is deported how will the divorce and seperation proceed?
This is a divorce issue. You need to speak with a divorce attorney in your state of residence. I have re-designated the question.
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It will depend on the law in NC. In California, all property and debts acquired before the marriage and after date of separation is separate property.
Well your question raises several questions that touch on multiple specialties. As a family law attorney, I can tell you that a persons immigration status will have little effect on the division of property/assets (Equitable Distribution) as far as the law is concerned. It certainly does have practical implications however.
The first thing you need to do is avoid a divorce at all costs until you have certain questions answered and take certain steps. If you have already been separated 12 months, the entry of a divorce judgement eliminates your ability to make a claim for Equitable Distribution (property division) or alimony. The only exception to this rule would be having a legally enforceable Separation Agreement and Property Settlement in place dealing with these issues prior to divorce. If you obtain a divorce without such a contract or filing your claims in Court, you could suffer severe financial and practical consequences.
Second, you have to decide how you wish to proceed in dealing with these issues. Have you talked to your spouse about a potential agreement? Are you locked in disagreement or at the point where no productive communication can take place? Do you believe your spouse would be amenable to a negotiated settlement agreement through an attorney?
In any divorce related claim the threshold question is whether to negotiate or file a lawsuit seeking court intervention to decide the marital issues. If you know the two of you cannot agree for whatever reason, then you need to file a lawsuit for equitable distribution to preserve your claim (and alimony if appropriate). After the claim if filed and pending, it is safe to proceed with a divorce.
In your case as you rightly point out, the issue of potential deportation complicates things. I suggest you file and serve your claim first and sort out the details later. Its the safe and prudent move. Have him served while he is here, and Court can establish jurisdiction over him. I understand actual deportation can take quite a long time if a person wishes to put up a fight, but cannot count on that. Once you file, you have numerous options to deal with the marital assets and debts even if he is deported. A court has the authority to grant interim distributions of assets and debts to deal with situations like a deportation, even if getting the Defendant back into court proves difficult or impossible.
Do you have substantial joint assets? Do you have substantial joint debts? These are important questions as well. Does he have assets acquired during your marriage that are located in the UK?
It is definitely worth a consultation with a family law attorney to review the specifics with regard to your situation and guide you. It may be that your attorney will determine you actually benefit from getting divorced without making a claim for equitable distribution. In any case, you need to know these answers so you can feel confident about the decisions you make going forward. I wish you the very best of luck!
The information contained in this response is general information and is not legal advice. Nothing contained in this response should be construed as legal advice or creating an attorney-client relationship between the attorney and the reader. An attorney-client relationship may only be created by express representation agreement between Glenn Doyle of Doyle & Doyle, PA and Client.
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