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. .
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"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.
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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.
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.
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.
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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