Abused Spouses: How Divorce May Affect Your Green Card Chances

by: Heather L. Poole, Esq.

The Violence Against Women Act (VAWA), passed into law in 1994 and amended in 2001, provides hope for immigrant abuse survivors. Under U.S. immigration law, immigrants may obtain a green card (“U.S. permanent residence”) by marrying a U.S. citizen (USC). The USC must, however under the normal course, petition U.S. Citizenship & Immigration Services (CIS, formerly known as “INS”) for an immigrant visa and a green card application for his/her immigrant spouse based on the marriage.

But this process is not always easy on the immigrant – in many instances, it provides one of the most abusive ways a sponsoring spouse can exercise control over the immigrant, by holding the immigrant’s tentative immigration status over her.

This is where VAWA helps. Abused immigrants who are married to a U.S. citizen or Lawful Permanent Residents may now petition on their own for an immigrant visa and green card application, without the abuser’s knowledge or consent.

However, one of the recurring problems and questions that come up in these abused spouse cases is what happens to the immigrant’s chances for a green card if the abuser goes through on his threat and files for divorce?

Similarly, how is her green card chances affected if the immigrant files for divorce, herself?

Filing for relief under VAWA may still be possible even if divorce proceedings have begun or even if the divorce is final. A divorced immigrant who was subject to extreme cruelty from his or her legal permanent resident or U.S. citizen spouse may apply for an immigrant visa as an abused spouse (eventually leading to a green card) if the petition is filed with CIS (INS) within 2 years following any final divorce decree.

Thus, if the immigrant is already divorced, s/he can still file for VAWA protection, but only if the divorce is 2 years old or less at the time it is filed and can prove that the abuse was related to the reason for or was the reason for the divorce, itself.

The divorced immigrant must still prove the basis elements of a VAWA self-petition including having a real marriage (i.e., not a marriage entered into for immigration purposes) as well as prove that s/he lived with the abuser when they were married at some point.

This provision allowing for divorce immigrants to file applies to all cases that were still being decided by CIS or filed on or after October 28, 2000. There are exceptions to this date, however, so an immigrant in this situation should contact an immigration attorney who regularly deals with VAWA (Violence Against Women cases) to determine if she is eligible to file for immigration protection under VAWA.

If an abused immigrant spouse chooses to not file a VAWA-based immigrant visa petition and chooses to rely on her spouse to sponsor her, if the spouse fails to sponsor her or the case the spouse filed is not approved by the time the divorce is final, that case will be denied and the immigrant will have to start over with either a VAWA-based immigrant visa (if eligible) or some other potential immigrant visa or will be stuck without the means to obtain a green card.

If an immigrant believes that her spouse is going to file for divorce or has already filed for a divorce and has a case based on her spouse’s sponsorship currently being decided by INS (CIS), there may be a way to save the green card (adjustment of status) application that is attached to her spouse’s immigrant visa filing and file for VAWA immigrant visa to protect herself from her spouse’s threats, and retain her work card and travel authorization instead of having to start all over again with a new green card application.

About the author:
Attorney Heather L. Poole practices family-based U.S. immigration law in Pasadena, California. She is a published immigration author and supervises abuse-based immigration cases at the Los Angeles Commission on Assaults Against Women. She is an active resource to the “Violence Against Women experts” list of the National Lawyers Guild, the National Network to End Violence Against Immigrant Women, and the National Domestic Violence Hotline. She can be reached at 626.432.4550 or heather@humanrightsattorney.com
For more information on the options available to abused immigrants, access www.humanrightsattorney.com

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Divorce and Alimony Formula

by: Jean Mahserjian

In divorce, a common question is, “what is the alimony formula”. Well, there really is no set alimony formula for divorce. This is in complete contrast to child support, which is decided based upon a specific formulas in each state. Alimony is based on factors and those factors are decided through divorce negotiation or by a divorce judge. But, there is no alimony formula available to your divorce attorney or you to determine in advance what alimony will be paid in your case.

What does a divorce court look at to determine alimony? Those issues do vary by state. But, there are also many alimony factors that are common from state to state. So, although there is no specific alimony formula for you to rely on, there are alimony factors that you can look at to help you determine what the alimony might be in your case.

In divorce, some of the alimony factors that a judge might look at include the following. First is the length of your marriage. If the parties have been married for one year, the court’s attitude towards a request for alimony will be very different than if the parties have been married for twenty years. Because the length of marriage varies so much in all divorces, it is not possible to plug this factor into an alimony forumla to determine the alimony amount.

Another factor affecting the award of alimony is employment status. Obviously, if the spouse seeking alimony has been unemployed or underemployed for a number of years to care for young children, the home, or the spouse, that is a factor that will militate in that spouse’s favour if he or she is seeking alimony. On the other hand, if that spouse has the ability to obtain employment that will more than adequately meet his or her needs, the court might think a little differently about awarding alimony to that party. Other factors that are considered closely with this factor include level of education, job experience, the age of children in the household, and work history.

A major factor that can affect an award of alimony is the amount of property to be retained or divided by the parties. If the spouse seeking alimony has been a stay at home parent, but will have signifcant assets after divorce or has separate assets, like a trust fund, the court’s attitude towards the award of alimony will be affected. The court will certainly view a request for alimony under these circumstances much different than a request made by an individual who is receiving no assets in the divorce or who does not have any separate property.

The health of the party seeking alimony is a major factor that can impact a court’s decision in awarding alimony. If the spouse seeking alimony has a debilitating physical condition that impacts whether or how much they can work, the court will not want to impoverish that party after divorce and the court will be more likely to use alimony to address at least basic living needs.

One other factor that should be considered by the divorce court and by the parties, is the taxability of the alimony payments. In most instances, if there is no specific provision to the contrary, spousal support payments are taxable to the recipient and tax deductible to the payor. The tax benefit obtained by spreading out economic wealth in this fashion can be significant and should be discussed in depth with your divorce attorney.

One issue that is not always considered by the court, but should be discussed with your divorce attorney, is that alimony payments are, in general, not dischargeable in bankruptcy. If there is any possibility that the party who is to pay alimony will be filing for bankruptcy, the divorce attorneys will negotiate very hard on both sides to maximize the final benefit to their client in divorce.

It should thus be apparent that in divorce, there can be no easy alimony forumla, no matter what state you live in. It is impossible to plug these and other factors into a mathematical equation to arrive at a “correct” alimony formula. It is necessary that the divorce court, or the divorce attorneys review how these varied and different factors affect both parties in the divorce and then arrive at a solution that encompasses all of the divorce issues, including property settlement and alimony. They cannot simply set up an alimony formula that would work for all parties.

About the author:

Attorney Jean Mahserjian is the author of numerous websites and books devoted to helping consumers through the process of separation and divorce. To download free excerpts from her family law books, visit: http://www.millenniumdivorce.com

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