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separation during pending permanent residency

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  • #16
    swissnut - that was fast! are there any laws in Maryland that pertains to annulment? i guess i want to delay signing any documents yet.. but what if she initiates it? can she do it by herself with a lawyer without my consent? or does it require my consent to agree to annulment? if it requires my consent, i will fight it to the end and go for divorce. thanks for your time swissnut.


    • #17
      i checked my case online status and it's still stuck in january when the case was transferred to baltimore from vermont. it doesn't say anything about i-130 being granted. i wonder why it's stuck in january? i tried talking to the uscis officer at the baltimore district office and they just gave monotonous "still pending fbi check". but funny thing is the fbi has already completed and sent the results to the uscis in june! the delay is monumental here!


      • #18
        OK, it is always wise to check to make sure laws have not been recently changed...but here is what I found.

        Grounds for Divorce in Maryland
        There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

        There are different grounds for a divorce, separation, and annulment. In the case of an absolute divorce, there are six (6) grounds for a court to grant an absolute divorce:

        desertion (constructive and actual);
        voluntary separation;
        criminal conviction of a felony or misdemeanor;
        two­year separation;
        Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground). You can file for divorce under more than one ground: for instance, adultery and desertion.

        In the case of a limited divorce, there are four (4) grounds for a court to grant a limited divorce:

        cruelty (against the child of the complaining party and/or against the complaining party);
        excessive cruelty;
        desertion (construction and actual);
        voluntary separation.
        Although any one of these grounds is enough for a limited divorce, a limited divorce will not completely terminate your marital status. In order to do so you must either seek an absolute divorce or an annulment.

        In Maryland there are two types of annulment. In the first type the marriage is declared void ab initio, or from its inception, as though it had never existed. You do not legally have to go to court to have the marriage declared void ab initio, although it's a good idea to do so. In the case of an annulment, a marriage must be "totally void" in order for it to be considered annulled.

        There are two characteristics of a "totally void" marriage:

        The marriage poses some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened) even after the death of one or both spouses; and no direct step or proceeding to annul is necessary (although the latter may be desirable).
        One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void.

        Another defective marriage is one done between "blood" relatives.There is also a provision that a minor of 16 and 17 years of age or younger than 16 could not marry unless the statutory provision of the Family Law code §2­301 is met.

        The second type of annulment is called voidable. A voidable marriage can only be annulled by going to court and having it declared void. . Annulment is available in Maryland, and in some cases it can be obtained under the name of a divorce. Along with obtaining an annulment for bigamy and for lack of consensual age, a marriage may be declared void if the parties did not really intend to marry or if they are incapacitated, as in insanity, intoxication, fraud, and duress. Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.

        So, it appears you have the posture of the state in your favour, as Maryland, according to this information, does not favour annulment over divorce, UNLESS the marriage was not valid to begin with, or there are extenuating circumstances. Now, I don't know all of the facts in your case, but it would appear that any family court would prefer a divorce. Stand firm on the divorce issue, no matter if she petitions for annulment and you will probably succeed in turning her petition into a divorce hearing anyway.

        The issue here, and one which muct be corroborated, please, is that there is a requirement that the parties live separately for a year. Then the procedure itself (the divorce) takes some time, especially if there are marital assets to divide. Make certain you do NOT sign a Separation Agreement with her. This is a means to circumvent the court system and speed up the process.

        Good luck!


        • #19
          swissnut - thank you so much for your crystal clear research. you are a lot more helpful than my own lawyer. i really appreciate your help. i will keep you updated. i have a meeting with my lawyer tommorow.

          we didn't have any kids - so child support is a non-issue.
          we only had about $10K in our joint savings account (she was the main breadwinner) where I deposited about $200 a month and she about $800 to 1000 a month. She withdrew the entire account and left a couple of dollars in it. I don't really have an issue with this but my lawyer is saying this is unfair. i think it would be best left alone and not 'stimulate' the other team to get too fired up. what do you think?


          • #20
            First there's a little mor info for your meeting, then I'll address the assets, later.
            What are the "no fault" grounds in Maryland?

            "No fault" divorces can be granted based on either of the following. These are the most common reasons given for a divorce.

            Mutual and Voluntary Separation for 12 months

            You must prove that:

            You and your spouse agree to separate and intend to end your marriage.

            You and your spouse have lived apart (without sexual relations or living together) for 12 months in a row.

            In Maryland you or your spouse can obtain, an absolute divorce on the ground of voluntary separation 12 months after

            The couple agrees to separate and

            Then live separate and apart in separate homes without sexual intimacy

            To get this sort of decree, you must have:

            An agreement, either **** or written, to separate with

            A mutual intent to end the marriage relationship and

            The marriage must be beyond any reasonable hope of reconciliation.

            Maryland law does not require a written separation agreement or legal separation in order to divorce.

            Involuntary Separation for 24 months

            You must prove that you and your spouse have lived apart (without sexual relations or living together) for 24 months in a row.

            You and your spouse do not need to agree to separate or to divorce.

            This ground requires that the couple have lived apart in separate homes without sexual intimacy continuously for two years. Neither party needs to prove or claim "fault". The person seeking the divorce only has to show that there has been no cohabitation (living together) between the couple for at least two years.

            General Overview of Grounds for Absolute Divorce
            An absolute divorce actually dissolves the marriage. Once a decree of absolute divorce is entered, the parties are free to remarry. After an absolute divorce, one party can no longer inherit property from the other, any property owned by them jointly as husband and wife automatically becomes property held in common (each owns one-half).

            In addition, the decree may provide for

            Sole or joint custody of the children

            The terms for payment of alimony and child support, and the disposition of personal property

            An equitable distribution of all the parties' assets, including ordering the sale of jointly held property and the dividing the proceeds

            Finally, a spouse may ask the court to include an order in the divorce decree which will allow the spouse (almost always the wife) to resume his or her birth name. These requests are almost always granted.

            Grounds for an Absolute Divorce
            To obtain an absolute divorce, one spouse must first prove that at least one ground for absolute divorce exists. The following is a brief description of each ground for divorce in Maryland.

            Adultery is voluntary sexual intercourse between a married person and a person other than the offender's spouse. It is a fault ground for divorce, which means that there is no waiting period for getting a divorce. If a party pleads and proves adultery, the divorce will be granted immediately.

            In Maryland, neither *********** nor fellatio (which the law defines as sodomy), is a ground for divorce and generally neither is considered adultery. The sexual intercourse necessary for adultery must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.

            To prove adultery, you do not need to show actual intercourse. Evidence that the offender had the disposition and opportunity for extra-marital intercourse will be enough. Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the non-spouse are generally sufficient to indicate an adulterous disposition. For example, opportunity may be proven by showing that your spouse was seen entering the non-spouse's apartment alone at 11 p.m. and not coming out until 8 a.m. the following morning. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is simply mere speculation. The same is true if you only show that there was opportunity but cannot prove disposition.

            An attorney can determine whether your facts meet the legal requirements for proving adultery. Evidence must include the testimony of a corroborating third party. It is not sufficient for the offender to simply admit the adultery. Additionally, if one spouse has a child and the other spouse is not the natural parent of that child, this is usually sufficient to sustain a claim of adultery. Finding Legal Help

            Adultery may be a factor in determining the right to alimony. It may be a factor in awarding custody of the children only if the court determines that the adulterous behavior had a detrimental effect on the children.


            Like adultery, desertion is a "fault" ground for divorce, and therefore may be a factor in the award of alimony and custody. As in the limited divorce, desertion may be actual or "constructive".

            Generally, in actual desertion, the deserting spouse leaves the home without cause. In "constructive" desertion, the person who leaves is justified and is therefore regarded as the deserted spouse. To establish actual desertion, the spouse seeking the divorce must prove the following:

            The deserting spouse intended to terminate the marriage;

            Cohabitation (living together) has ended;

            The deserter's leaving was unjustified;

            The parties are beyond any reasonable hope of reconciliation;

            The deserted spouse did not consent to the desertion; and,

            The desertion has continued uninterrupted for 12 months.

            A lawyer can best help determine whether these elements are present. Finding Legal Help

            Technically, "constructive" desertion also requires proof of the above elements. The most common justification for constructive desertion is cruelty. If the cruelty or intolerable conduct of the one spouse causes the other spouse to leave the home, the spouse remaining in the home could be considered to have deserted the relationship by his/her actions.

            In cases involving constructive desertion, the court will take into account the following factors:

            The nature and duration of the misconduct;

            The length of time the leaving spouse endured the misconduct; and

            What attempts the leaving spouse made to try to save the marriage.

            Generally, the court will allow the spouse to leave and get a divorce for "constructive" desertion if remaining in the home would make them lose their self-respect or put them or their children in danger of either physical or mental harm.

            If you are considering leaving the home, before you leave, make sure you consider the following:

            Does your spouse's conduct warrant your leaving? If not, he or she may be able to sue you for actual desertion. It would therefore be wise to consult your lawyer before leaving the home. Finding Legal Help

            Will your own conduct prevent you from getting a divorce on grounds involving "fault" – adultery and actual or "constructive" desertion?

            If your spouse has left the home without cause, remember the following:

            Once your spouse has left, you must not have sexual relations with your spouse. A single act of intercourse or a night spent together under the same roof will interrupt the 12-month continuous desertion requirement and will also violate the requirement of no cohabitation.

            You must not consent to your spouse's desertion. If you consent, it is not desertion but rather voluntary separation, a ground for divorce not involving "fault." There is a difference between consenting and giving in to something you cannot avoid. "Giving in to" and accepting the desertion will probably not be considered consent.

            You must not be guilty of any misconduct that would justify the desertion.

            What do you do if your spouse deserts you but returns? If s/he begs you to forgive and forget in good faith, you have the option to either accept or refuse him/her. In Maryland, the issue is settled if you accept the deserter. However, if you refuse to even see or listen to your returning spouse, then your spouse could then sue you for desertion. The waiting period would start all over again, beginning with the time of your refusal. Keep in mind that "good faith" is the most important determining factor. For example, if your husband deserted you and then tried to return, only after realizing what the high costs his alimony and legal fees would be, his return would not have been made in "good faith".


            • #21

              Sorry for the lengthy post, but since you are meeting with your attorney tomorrow, I wanted you to go armed with some basic information.

              Now to the disposition of assets. Although I could not see if Maryland is an "equitable distribution" state, from what I've read it appears that it is. You might want to confirm that with the lawyer, although as his comment indicates, he seems to be implying that.

              If MD is "equitable" it matters not who the bread winner was, as long as both parties contributed to the marriage. In other words, whatever assets you acquired during the marriage and whatever is in the checking account, should be divided equally, UNLESS, those monies were there before you married and deemed as separate by your wife. Even if they were separate, there is a trick which sometimes works in that case, anyway. Any separate funds dipped into during the marriage to pay joint obligations, CAN render the funds as marital, and therefore be subject to equal division.

              As far as an opinion as to whether you would annoy your wife by demanding what is rightfully yours, I can't really comment. What I can say is that "she" wishes to terminate the marriage and you need to think of your future security, keeping in mind that lawyers can be much more costly than you think in these matters. It is not uncommon for a divorce to cost each party a sum of $3-4,000.00 and that is for a simple case. Some reach into the tens of thousands of dollars. Furthermore, consider that you might need some guidance down the road with your immigration matter, and that will require funding too.

              You are perfectly within your rights to ask for what the court would allow you, and I think it matters not in this case, as my opinion is that this is likely to be handled as a divorce, anyway.

              Be sure to ask lots of questions tomorrow.


              • #22
                thank you swissnut - i just wish my lawyer was as patient as you are...


                • #23
                  keep us posted. Delay your divorce as long as possible. Before years end you will get your conditional. after the 2 year conditional is over you file an I-751 waiver and you are extended for another year in the States. During that year a decision is made asking you to come for an interview and if you pass you are a permanent resident. But my point is that you have a good 3 years to continue studying.


                  • #24
                    hi people... thanks for thinking of me. i changed my lawyer today. he's probably a great guy but he wasn't an immigration specialist. so i sought out a lawyer with both immigration/family law background. he was neat too.

                    once he had my story and my version of facts, he gave me a legal opinion of my case. he thought that there was a very weak grounds for annulment especially with the 1 year of dating and large wedding with international guests.

                    as far as my immigration status, he was in opinion that i would be a conditional resident inspite of no I-551 yet. he said he would try to make an equiry of this.

                    people, i want to finish my studies here in the US. that's what i intended to do before the marriage and it means more to me to accomplish what i had planned. i intend to do this with or without perm residency as an f-1 if needs to be. of course, i want to return to the US and revisit my school and say hi to my friends and colleagues who are really concerned about me... i don't want to be removed either voluntarily or involuntarily and face a lengthy entry ban! my lawyer took down my notes and my reasons as well as my goals... he seemed to nod with me every word I said (which was a complete contrast to my previous lawyer). i was glad that i switched. at least i would know that my lawyer was on MY side.

                    keep you all posted on further developments. keep your advice/comments flowing. thanks.


                    • #25
                      You won't ever get an F-1 status not just because there is now a pending I-485 but because the I-485 proves you have an intention to become a resident of the U.S. An F-1 beneficiary must not have any intent of being a resident. The I-485 application (past or present, pending or not) will be used to prove intent to immigrate.


                      • #26
                        I would nod to everything you say as well, as long as you will pay me when you finish talking.


                        • #27
                          Hi Pepper

                          So does this mean that if I am denied conditional PR due to my USC spouse withdrawing her petition (after I-130 was granted), I will be automatically deported because I will automatically be out of status? I am still a pending conditional Permanent Resident because of pending FBI namecheck... This is so unfair! I came legally as a student and am still a student. Now because our marriage didn't work out, I will have to give up all my studies as well? Do I have any right to appeal? Please share your knowledge. Thanks heaps.


                          • #28
                            Radiohead, unfortunatly, that what it looks like to me, too; once your adjustment of status to PR is disrupted, you will have no basis to remain in the U.S. To my knowledge, an adjustment from any status to F-1 is not possible from inside the U.S.; you'd need to be actually and physically 'removed' from the U.S. first, file at a foreign soil U.S. consular office for the F-1 to finish your studies here.

                            Whatever you do, don't break any laws and try to remain in status. As long as your marriage is not dissolved and you haven't been denied the adjustment to PR (conditional or otherwise), you should be able to continue your studies. Good luck!


                            • #29

                              I have looked into this matter in greater detail. I must sincerely apologize for the misinformation I provided. I have since learned that you did not automatically forfeit your F-1 status by applying to adjust status. As long as you have maintained your F-1 status (i.e. not working and attending school full time) then it is still valid if your pending AOS is denied.

                              Again, I am very sorry for providing you with such added stress because of my lack of knowledge of the pertinent laws. I have deleted my incorrect posts and have provided you with the relevant info below.

                              See Matter of Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975).


                              1. It is possilbe to maintain F-1 status after marrying a US citizen.

                              2. Filing for adjustment of status does not violate the terms of the F-1. F-1s can adjust status. While adusting status, F-1s can maintain
                              status, by adhering to the terms of the F-1 status until the adjustment is granted.

                              3. Divorcing during a marriage-based adjustment may cause the adjustment to be denied.

                              6. If the adjustment is not granted, it is possible to continue to stay under F-1 status as long as the F-1 status was maintained.


                              • #30
                                Here is a piece of adive from someone with a more or less similar situation, DO NOT LEAVE WITHOUT YOUR DIPLOMA, this is very important even if you might fail at your marriage but hang on to your studies and finish your degree. I was in a similar situation a year ago but I took the easy way out, I packed my things and headed home...Wrong, and pleasze don't do that. Even if you have to go on f1 visa and pay international fee do it but do not let these problems distract you from the reason you came to the states; to finish youe education.. Really take these words seriously I wish there was someone there for me to open my eyes. I wish I can help you with some legal advice but since I can't then I simply advise you as someone who undergone what you are experiencing now. Good luck


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