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Divorce or Stay Separated

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A bit of background...

3rd Anniversary coming up in May

He joined me in USA in the fall of 2008.

He got his greencard one year ago.

Since he got his greencard we've lived together less than 3 months.... (he went 2000 miles away to take a job for 6 months)

We've been separated since February 21st.

I don't think I even know him anymore... The "friends" that he's made here (that also came here from "the old country") have filled his mind with all kinds of nonsense...

They told him to report me to the IRS for filing a joint tax return - because he wasn't living with me for 6 months last year... (so I'm USING him to reduce my taxes!!!)... Never mind the fact he isn't claiming a DIME for the work he did "under the table" during the 6 months he was gone, and the THOUSANDS of dollars I spent on him during the 6 months he was here before he got his greencard and work permit... sending $$$ to his dependents back home...

If I stay married to him and just let him go on doing whatever he's doing (he doesn't return my calls, etc.) what "risk" am I taking? (I have already paid $3600 for his health ins. policy that's good through 2010....). To my knowledge, he is unemployed living with friends... He has been given the option to come home but has chosen not to. (While claiming that I "kicked" him out...)

If I divorce him I'm sure his friends will advise him to try to get $$ in the divorce.. We have a pre-nup but he will claim he didn't understand it... (as he's claimed about EVERYTHING)... I understand that I am stuck with the 864 but not sure what government "benefits" he'd be eligible for... as a single man with nothing to keep him from working (like disability, etc.).

If I"m married to him I don't see how they could make me pay for his housing, or food... because he COULD come home... Has anyone ever heard of a woman being required to pay to support her temporary greencard holding ex after a divorce?

It's another year before his current greencard expires... He claims I'm staying married to him so I can PREVENT him from getting the permanent greencard... ???????? Do I have to "approve" his permanent green card application if I"m still married to him??? I know if we divorce he could TRY to adjust on his own... (good luck with that!)

It seems I'm damned if I do and damned if I don't...

Anyone want to tell me the odds that I'll end up supporting him if I divorce him?

If we stay married could he decide to live in an apartment and stick me with the bill for housing and food because he doesn't want to come home?????

Boy this is complicated.... Makes me feel homesick for a NORMAL "old fashioned" domestic divorce... wacko.gif


Heads He Wins - Tails I Lose!

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As long as you were still married at the end of the year then you can file a joint tax return. It's not necessary that you live together for any specific period of time. His friends are confusing the requirements for a dependent with the requirements for filing a joint return. You are supposed to have his cooperation and permission to do this, which means using his PIN if you used eFile or obtaining his signature if you filed a paper return.

If he is working "under the table", then technically you both did not claim his income since you filed a joint tax return.

Removal of conditions to get a permanent green card does require that you jointly file an I-751 with USCIS. Except under a few specific circumstances, this must be done in the 90 day window before the conditional green card expires. However, he can file the form on his own, or "self petition", if the marriage has ended in divorce. In that event, he would not have to wait until the 90 day window to file. In fact, USCIS is compelled take steps to terminate his conditional legal residency if they discover the divorce, so he should file as soon after the divorce as possible. In order to successfully remove conditions on his own he will need a final divorce decree, and he'll need to prove he entered the marriage in good faith. This usually involves evidence that you lived together as a married couple, such as co-mingling of finances. If he doesn't already have this evidence, then he'll probably try to get you to provide it for him.

Most LPR's are not generally eligible for taxpayer funded public benefits until they've been an LPR for 5 years. It's unlikely you'll be required to pay any spousal support after a relatively short marriage, but it depends on the state laws where the divorce is filed. It's possible he could use the I-864 as a basis to get support. Again, it depends on the state laws. Many family courts won't consider it because there is no basis under state law to consider it. He could still file a separate civil case, but those fail more often than they succeed. The biggest problem lies in the fact that he's not a party to the contract, so many courts will tell him he needs to get the federal government to sue on his behalf. They won't do that.

Only a good divorce lawyer could tell you what the chances are that he'll get any money from you, since state laws play a big role here. There are some things to consider here, though.

He can't remove conditions on his own until you are divorced. He could file without the divorce decree, but he'll end up getting an RFE for the divorce decree later. If he can't provide it then he'll end up in removal proceedings. He could ask the immigration judge to postpone the proceedings until the divorce has been granted. They'll usually grant this request. If you don't file for the divorce, and don't cooperate in filing a joint petition to remove the conditions on his legal permanent residence, then he will be forced to file the divorce himself. This will put you in the unenviable position of being the respondent in a divorce case filed in another state. Unless you want all motions he submits to be granted by default, you'll need to hire an attorney in that state to represent you. This could get expensive, and you may not get the outcome you desire. You'd probably be much better off filing for the divorce yourself. As soon as the divorce is final, send a copy of the divorce decree along with a cover letter to USCIS explaining that you will not support his removal of conditions. This may force him to self petition immediately in order to avoid removal.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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