Resources

Immigration and Divorce EPCBA

INTRO

Non-citizen and immigrant spouses can add a unique level of complexity to any family law. Typically, the citizen spouse has a misguided belief that having the spouse deported is the best option to avoid financial responsibility and to gain an upper hand in custody determinations. Unfortunately, it is not this simple.

Attempts to deport a spouse can lead to criminal liability on the part of the citizen spouse.

Additionally, citizen spouses can also have an indefinite support obligation that exceeds in amount and time what the spouse may have been ordered to pay through Colorado’s Spousal Maintenance Law (C.R.S. 14-10-114). This increased support obligation is often a result of the I-864, a contract between the citizen spouse and federal government that can be enforced in any state or federal court.

In child custody determinations, immigration status has been determined to be only one factor the court is permitted to consider out of several and status alone cannot be a factor to deny parental responsibilities. If an immigrant spouse returns to their home countries and the children are there with them or will travel internationally for parenting time, special considerations and language should be added when crafting parenting time plans.

 

Immigration and Petitioning for a Spouse/Family Member

Every year, hundreds of thousands of United States citizens petition the United States Government for their family members to obtain legal permanent residence status. Under the national immigration law, the United States government breaks down the relationship between the petitioning citizen and sponsored citizen into two groups, immediate relatives and family preference.  (Immigrant Categories)  Annually there are no quantitative limitations on the number of immediate relatives that can qualify and be granted conditional resident status, however there are quantitative limitations on the number of family preference applications that can qualify annually for admission. Spouses of United States citizens are considered “immediate relatives” and thus are exempt from a variety of the limitations placed on other petitioning foreign-born nationals, including the quantitative limitations imposed by the United States government.

Spouses who immigrate to the United States based upon marriage are given a two year conditional permanent residence status. This status lasts for two years and is subject to termination if the marriage if found to be a “sham” marriage. Other than being subjected to having their status terminated after two years, conditional resident status recipients are afforded the same legal rights and responsibilities as legal permanent residents. After the two year period they must apply under 8 CFR 216 to have the conditions lifted. If they are unsuccessful in removing the conditions or if their petition is denied, the alien will lose their status and be subjected to deportation.

Ninety-days prior to the anniversary of being granted conditional resident status, the immigrant must file a petition with the INS to remove the conditions on residency by filing an I-751 Form.  If the marriage is still intact, the United States citizen spouse must jointly file the petition. If the marriage has been dissolved then there is a risk that the immigrant spouse can lose their status and become deportable. This risk led immigrant spouses to stay in abusive marriages out of fear. The United States addressed this concern by allowing certain conditions which would allow an immigrant spouse to file a petition for legal permanent resident status unilaterally.

This requirement may be waived if 1) you entered the marriage in good faith and the spouse died 2) you entered the marriage in good faith but the marriage was terminated by divorce or annulment 3) you entered the marriage in good faith but are a battered spouse or have been subjected to extreme cruelty by your US citizen spouse or 4) termination of your status and removal would result in extreme hardship. Waiver of Condition I-751 Evidence of the immigrant spouse entering the marriage in good faith must be presented. Examples of sufficient evidence are: birth certificates of children, documentation of joint occupancy/ownership of residence, financial records showing joint liabilities and assets, sworn affidavits of at least two people who have known both of you since your conditional residence was granted and have personal knowledge of your relationship and marriage, or other documents considered relevant. The test determines whether or not the marriage was entered into in good faith on the date of the marriage, not when the party is filing for the conditions to be removed.

 

Petitions for Waiver of Conditions Including Domestic Violence

Out of all of the ways to waive a requirement of a joint petitioner, the easiest to prove are that you entered the marriage in good faith but that the other party died or your marriage was annulled or ended in divorce. Good faith can be proven by birth certificates of children, documentation of joint occupancy/ownership of residence, financial records showing joint liabilities and assets, photos of your marriage, and any other proof that the marriage was not a “sham” marriage. The test of “good faith” is based upon what the intentions were on the date of the marriage.

Conversely, a claim of extreme hardship is a very tough burden to prove and is the least likely to be able to be proven by an immigrant spouse.

A claim of being a battered spouse is easier to prove. Immigrant spouses are often times considered to be more vulnerable to abuse and cruelty. The inequality of power in the relationship is one factor to consider. Economic dependency, unfamiliarity with American culture, concerns of deportation and fear of the legal system often cause immigrant spouses to not report abuse. Due to the concerns surrounding immigrant spouses subjected to abuse, Congress added the abuse provision to I-751 in 1990. 

INA section 216 allows conditions on residency to be removed if the petitioning spouse can show entered marriage in good faith but spouse either physically abuse the conditional resident or the conditional resident’s child or subjected them to extreme mental cruelty.  Physical abuse or extreme mental cruelty may include: sexual abuse/exploitation, forced prostitution, incest, rape, psychological abuse/exploitation, forced detention resulting or threatening to result in physical or mental injury, and being the victim of any act of violence. The petitioning immigrant only need credible evidence of the abuse and a totality of the circumstances are considered. INA regulations provide for confidentiality of the information and documentation submitted in these applications to assist in protecting the applicant.

Another protection allowed via VAWA (Violence Against Woman Act) is a provision that allows the immigrant spouse to self-petition to gain legal permanent resident status.  This provision is not the same as a waiver of the joint petition and is extended to spouses, children and in some cases to parents of US citizens.  Evidence needing to apply for a self-petition via VAWA are that of: a good faith marriage, qualifying relationship (parent/child relationship with claimant is parent/child), abuse (including physical battery or extreme cruelty), joint residence and good moral character.

Family law attorneys can help victims of abuse and cruelty to obtain evidence of abuse through court transcripts.  This evidence cannot only be used to establish a pattern of abuse, but can help obtain protective orders for the abused spouse and assist in obtaining documentation of the relationship that can help establish a bona fide relationship as required by immigration.

 

Effect of Divorce on a Pending Immigration Petition

Dissolution of marriage can have a variety of ramifications on a pending immigration petition. At times, threats regarding immigration status are used in dissolution proceedings by the citizen spouse to obtain an advantage in dissolution proceedings. Petitions that are pending but not granted cannot be approved once the marriage is no longer legally viable via legal separation or divorce. What immigrant spouses are typically not aware of is that a pending immigration petition cannot be denied solely on the basis that the parties are separated or have a marriage that is on the rocks.

The first question that INS will examine is whether or not the marriage was entered into in good faith and if in fact there was a bonafide marriage that was entered into. Typically, the government requires other reasons/basis for the marriage other than immigration benefits, however this benefit combined with others is rarely a reason to find that a good faith intent did not exist.

Once a petition is granted and the immigrant spouse is granted conditional resident status, divorce does not make the immigrant spouse ineligible for legal permanent resident status.

 

Continuing obligations of a Citizen Spouse that Survives Divorce

When applying for immigration status for a foreign-born spouse, the United States Citizen must execute an Affidavit of Financial Support or a Form I-864.  This form has been held by several U.S. Courts to be an enforceable contract between the citizen spouse and the federal government that the citizen spouse will provide support for the immigrant spouse at or above 125% of the federal poverty guidelines for his/her household size until one of several qualifying events occur. Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008); Montgomery v. Montgomery, 764 F.Supp.2d 328, 331 (D.N.H. 2011); Younis v. Faraooqi, 597 F. Supp.2d 552 (D.Md.2009);

Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012). In re Marriage of Sandhu, 207 P.3d 1067, 41 Kan.App.2d 975 (2009); Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011); Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008); Davis v. Davis, 970 N.E.2d 1151 (Ohio Ct. App. 2012); In re Marriage of Kamali and Alizadeh, 356 S.W.3d 544 (Tex. App. 2011); Barnett v. Barnett, 238 P.3d 594 (Alaska 2010); Iannuzzello v. Lovett, 981 Do.2d 557 (Fla. Dist. Ct. App. 2008).

These qualifying events are under Form I-864 are:

  1. 40 qualifying quarters towards Social Security eligibility
  2. Death of a sponsor
  3. Naturalization of the immigrant spouse
  4. Death of immigrant spouse
  5. Immigrant spouse returns to their native country and forfeits legal permanent resident status

Divorce and legal separation does not terminate an obligation of a citizen spouse and a citizen spouse may not withdraw their obligation. An immigrant spouse can raise an enforcement claim in their petition or answer. In re Marriage of Sandhu, 207 P.3d 1067 (2009). Additionally, remarriage of the immigrant spouse also does not terminate the citizen sponsor’s obligation.

This contract can be enforced by a sponsored immigrant or third party (public entity that provides financial assistance to the immigrant spouse). 8 U.S.C. §1183a(4)(C)(ii)  The immigrant spouse is considered a third party beneficiary of the contract between the citizen spouse and federal government thus can seek enforcement based upon basic contract law principles. Any party seeking enforcement can attempt to have this contract be enforced in any state or federal court that has jurisdiction of a lawsuit against the sponsor. 8 U.S.C. §1183a(1)(c) Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011); Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008); This includes the Colorado District Court in dissolution of marriage proceedings. In dissolution of marriage proceedings this contract can provide for support of an immigrant spouse where other support provisions under the UMDA may not.

Read this article for more information.

 

What if any is the standard for the Court to consider in the amount of such an award?

The purpose of the contractual obligation by a citizen spouse under the Immigration and Nationality Act is to support an immigrant spouse at or above 125% of the federal poverty guidelines applicable to the size of her household, is to prevent the immigrant spouse from becoming a public charge. 8 U.S.C. §1183a(1)(B). By setting a floor of 125% of the federal poverty guidelines the federal government has established where the determination of support begins. However, the language “at or above” clearly indicates discretion in the amount to be set by the Court. Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011); Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008); Davis v. Davis, 970 N.E.2d 1151 (Ohio Ct. App. 2012); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008);

Many courts have followed Naik in determining how much support a sponsor owes to a sponsored spouse. In NaikI, the Court held that if a sponsored immigrant’s sources of support exceed 125% of the federal poverty guidelines applicable to the size of her household, then no I-864 support is mandated by the INA.  Additionally, if there are other sources of support (ie. income of the immigrant spouse or property owned by the immigrant spouse), a sponsor’s support is limited to cure the deficiency between the sponsored immigrant’s income and the appropriate guideline amount. See also Younis v. Faraooqi, 597 F. Supp.2d 552 (D.Md.2009); ; Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008); Barnett v. Barnett, 238 P.3d 594 (Alaska 2010)

In enforcement of the I-864, the Court must consider the sponsor’s assets which are deemed available to help meet their obligation. Property of the immigrant spouse is also considered and may reduce the amount of contractual support awarded. Whether or not the immigrant spouse is working is also a consideration in the enforcement of the contract. Case law throughout the country has provided that if the immigrant spouse is actually working, the citizen spouse is entitled to a credit for the immigrant spouse’s earnings against their obligation. Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011) Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) Conversely, other courts, such as the Naik Court, have held that an immigrant is expected to engage in gainful employment to mitigate the damages and potential support obligation owed under the I-864. Colorado is one of the states which has not established how to calculate the amount of an award and whether or not an immigrant spouse has a duty to mitigate damages.

Under 8 U.S.C. §1183 (a) c states that if enforcement of the I-864 through court action is necessary, the sponsor is obligated to pay the immigrant spouses attorney fees and costs, which can be an added financial burden to the citizen spouse. The citizen spouse is also forewarned of this exposure on the I-864.

 

Considerations in family law when dealing with immigrant spouses

When dealing with an immigrant spouse or citizen spouse where there is an I-864 support obligation, attorneys should consider:

  • How the foreign born national has assimilated to their community
  • General physical and mental health of the parties
  • English language skills of the immigrant spouse
  • Currency skills of the immigrant spouse
  • Education of the immigrant spouse (foreign and domestic)
  • Experience in local job market
  • Adaptation to local cultural and social climate
  • Differences in foreign education and work experience which is usually not transferable to the American job market

Additionally, family law attorneys should look for ancillary evidence in the I-864 if a financial affidavit of assets filed by the citizen spouse with the federal government that has all of the citizen spouse’s assets itemized. In dissolution cases this affidavit can provide valuable information. Part of the discovery process in dissolution proceedings should be to obtain it to compare to the financial affidavits filed in domestic matter and the petition for legal permanent resident status. These can be obtained via a FOIA request from the Federal Immigration Department. These requests can take up to two (2) years to obtain and typically are produced no sooner than six (6) months from the date of the requests.  Such requests can be expedited if there is a demonstrated special circumstance that relates to the need to obtain it. In most Courts, a motion to produce the I-864 may be sufficient.

 

Can I have my spouse deported?

When a marriage breaks down, citizen spouses often times look for quick ways to get rid of their alien spouse and diminish their exposure of financial support to the immigrant spouse or to gain leverage over parenting time issues.

Often times, citizen spouses attempt to do this via contacting the INS and request that their spouse be deported based upon marriage fraud. In most cases, this action is not helpful to either spouse and rarely achieves the desired results. Citizen spouses must be aware that they could face criminal liability under 18 USC 1001, for a marriage fraud allegation if they had any knowledge of the immigrant spouse’s intent to marry to gain legal permanent resident status and participated in the “sham” marriage.

If there has been a history of domestic violence during the marriage, there is a provision under the Violence Against Women Act which allows for an immigrant spouse to stay in the United States if they have been subjected to cruelty or abuse. Sometimes the very vehicle that you have used to attempt to get your spouse deported can be used against you to establish a reason why the spouse should be granted legal status within the United States.

If true fraud exists, this is a valid reason to pursue an Invalidity of Marriage action in Colorado.

The Changing Face of Military Retirement

The Changing Face of Military Retirement

In 2016, there were 87,015 military retirees in El Paso and Teller Counties. In family court, military retirement is a hot topic, especially in light of new legislation and pending case law. As practitioners, we are seeing the military retirement system morphing in front of our eyes, with changes to post decree enhancements, survivor benefit plans, and the new blended military retirement system.  Military retirement as we know it in dissolution matters is going by the wayside, causing most of the previous case law to become obsolete.

 

New Blended Military Retirement System

Beginning on January 1st, 2018, service members with less than 12 years of service will face a critical decision regarding the financial future and retirement. Service members with one to twelve years of service will have until December to elect whether they want to stay in the traditional military retirement system or opt in to the new blended system consisting of a smaller pension and a 401k option. Members entering the service for the first time will automatically be enrolled in the new hybrid retirement system, while members with overs 12 years of service will be grandfathered in to the traditional retirement system. Members who do not elect prior to the end of the 2018 year will default to the traditional system. ,

The new blended retirement system will allow service members who separate from the military prior to 20 years of service a retirement benefit. Under the traditional system, there is an all or nothing benefit for retirees, meaning they either reach 20 years of service and receive their pension or separate prior to the twenty-year mark and receive nothing.

This new hybrid system was signed into law as part of the 2016 National Defense Authorization Act  and was amended by the 2017 National Defense Authorization Act signed in November 2016. There are three main components to the act. The first, is a pension similar to the current retirement benefit, however the multiplier is changed from 2.5% to 2%. This translates into benefits received in the pension portion being approximately 20% less than that received under the traditional plan. The second component is referred to as “continuation pay.” Upon reaching 12 years of service and agreeing to a new four-year commitment, the service member will be entitled to continuation pay. The amount will vary by career and branch, but is to be equal to no less than 2.5 months of the member’s basic pay. These funds can be received via cash or invested. The final component is cash contributions to an individual investment account (Thrift Savings Plan), similar to an ERISA 401k. Members enrolled in the new blended system will automatically receive a monthly amount which is equal to 1% of their basic pay. To further incentivize service members to contribute there is a matching contribution into the investment account ranging from 1-5% of the monthly basic pay. The Department of Defense will match dollar for dollar individual contributions to the accounts up to 3% of gross basic pay, on top of the 1% contribution each month for a total of 4%. In addition, they will also match 50 cents for every dollar on contributions more than 3% capping out at 5%. This provides the option for members to receive up to 5% of contributions from the government. These contributions become fully vested after just two years of service at which time the service member is free to do with the matching contributions as they would like. Just like other investment accounts, there is some risk to these plans as they are subject to market conditions. In addition, they are subject to the 10% early withdrawal penalty if the funds are withdrawn prior to age 59 ½, and taxes are deferred on contributions but payable upon the withdrawal of the funds.

A final change is the option for a lump sum cash payout of a member’s benefit when the member retires. Upon reaching their twenty years of service and electing to retire, retirees can choose either to receive their pension in the traditional form of monthly payments or receive a portion (25% or 50%) as a cash payout while reducing the amount that they will receive monthly until they reach the age 67. After this age, they will revert to receiving the entire benefit again. This option is similar to the current redux retirement option. This portion of the retirement system remains the most in flux as there is no real guidance of the precise amount that members electing this option will receive. It is clear that the amount will not be a simple calculation, but will be similar to those used to determine the current value of future payments and dependent on the discount rate that will be used. The details of this portion are left to the Pentagon.

These changes are going to impact the practice of family law pretty drastically. While some of the components are similar to those already in existence, there is a host of other potential considerations that practitioners will have to consider, such as continuation pay.  Is property subject to division? Is it a vested interest? Is there a marital component to this which should be divided? Should the Court reserve jurisdiction over this? Another unknown is how the court will treat the lump sum payout option, and whether or not the service member will need to indemnify the former spouse if they choose this option. No matter the answers, the future of military retirement in dissolution matters is entering some uncharted waters where there is bound to be some litigation surrounding these changes.

 

Post Dissolution Enhancements

Also part of the National Defense Authorization Act for the Fiscal Year 2017 is a change to the definition of disposable retired pay in 10 U.S. §1408, signed into law on December 23, 2016, and taking effect immediately. The effect of this change “freezes” the former spouse’s share of retirement as of the date of dissolution. This means that, unlike the old definition where former spouses benefited from post-dissolution career enhancements and promotions, former spouses are limited to receiving the amount as if the member retired on the date of divorce. Due to this change at the federal level, state courts are now effectively barred from using the time/rule or coverture formula and instead must use a new formula that captures the current state of affairs.    

This change too will have a significant impact on property division in dissolution cases and equitable arguments. The scope of this change is limited to the military and does not affect federal government employees’ FERS or state PERA which both allow the former spouse to benefit from post-decree promotions and division per the time/rule formula. The result is potentially a disparity in the amount of these accounts received by each spouse. It is still unclear as to what the Courts will do to deal with this. Some options are offsets of other property or an equalization payment.

 

Indemnification

Earlier this year, the U.S. Supreme Court heard arguments in Howell v. Howell, a dissolution matter stemming from Arizona. The Federal Government requested cert to determine if the Uniformed Services Former Spouses Protection Act (10 U.S. Code §1408) bars state court from ordering a veteran to indemnify a former spouse for a reduction in retirement pay due to a post dissolution waiver to retirement in order to receive VA compensation for a service-related disability. Colorado, through the Warkocz case does authorize this indemnification, as does Arizona and a majority of other states. Other minority states do not authorize indemnification. The anticipated ruling could drastically change how Colorado deals with this issue.

 

SBP Rule Change

Another less known and talked about change was included in the 2016 National Defense Authorization Act, which relates to the Survivor Benefit Plan (“SBP”). Prior to the enactment, the rules regarding transferability of SBP coverage upon a former spouse’s death was undefined. However, in practice DFAS held that the SBP coverage died with the former spouse and all payments made were lost. The 2016 Act clarified this and now provides that upon the death of a former spouse, the retiree can transfer the coverage to a new spouse within one year of the former spouse’s death or within one year of a new marriage.

Mediation-One Size Fits All?

Divorce and child custody disputes are traumatic for everyone involved.  Unfortunately, the message most people have heard about divorce is that is is a time to dig in and fight the other party.  When you approach your divorce from this perspective, your are handing control of your life and future to outside parties: lawyers and judges.

There is a different way.  You can make it your goal to be part of a growing number of divorcing or separating partners who approach divorce as a transition, not war.  Mediation helps each of you identify the most important issues, look for areas of agreement, and work to come to an outcome that everyone can live with.

If there are children involved, there is even more incentive for couples to approach divorce as a peaceful transition to a new type of family, rather than a fight to the death.  As parents, your children are the most important thing in your lives.  Give your children the gift of an amicable transition from each other and a positive co-parenting relationship going forward.

The goal of mediation is to help two parties come to their own agreements regarding disputed issues, rather than leaving important life decisions in the hands of the judge.

 

What is Mediation?

Mediation is an alternative to the traditional process of solving disputes through litigation. It provides the parties with an opportunity to discuss their issues, clear up any misunderstandings, identify their interests, and find ares of shared interests and mutual agreement.

The purpose of mediation is to help people resolve, or at least better manage, their disputes with each other. The process is intended to tap into the parties’ wisdom, unlock creativity, promote understanding and cooperation, and bring hope to the parties.

 

How Long Does It Last?

Mediation lengths vary, depending upon the issues to be resolved.  The minimum session is a two hour session, although for a full resolution of both child custody and financial issues, four or more hours may be needed.

 

How much does it cost?

A two hour mediation is $300, $150 per party.  The hourly rate after the first two hours is $150 per hour.  If you are considering divorce in Colorado Springs, Jen Knies Mediation and Child Family Investigation can help.

 

MEDIATION-ONE SIZE FITS ALL?

Mediation is a useful process for just about any type of dispute, but different issues and relationships warrant different approaches to mediation.  Even within the practice of mediating divorce and custody issues, there are various styles that may work best, depending upon the issues and personal relationships involved.

Often, parties come to mediation with very high emotions.  The pain, anger and sadness may still be fresh.  Sometimes before any progress can be made, a person may simply need the opportunity to express the emotions they are feeling-to feel that they have been heard.  Once they have had that opportunity, they can focus on the actual issues that need to be addressed.

Other parties may have moved beyond the raw emotions, but have a hard time seeing the disputed issues from the other person’s perspective.  When each side believes that their view of a problem is the only way to see it, they are not likely to  reach a mutually agreeable solution.  In these instances, reframing the issue helps the parties see things from a different perspective.

Some parties aren’t even that far apart in their positions, they are just overwhelmed at the sheer number of decisions to be made, and don’t know where to begin.

Each of these dynamics will benefit from different approaches to mediation.  It is important for the mediator to understand the dynamic between the parties and determine the appropriate type of mediation techniques to apply, given not only the actual disputed issues, but the emotions and perceptions each party brings to the table.

Child Family Investigation

What is a Child Family Investigator?

When parties cannot agree on parenting time and/or decision making, a Child and Family Investigator (CFI) may be appointed by the court. A CFI is usually a licensed attorney or mental health professional with knowledge of child development. The CFI’s job is to conduct an investigation and write a report for the court in which they make recommendations on what they believe is in the child(ren)’s best interest.

 

What is the Process?

Parents with an open case in Court can request that the judge appoint a CFI. The form to request a CFI is available at the bottom of this page. 

Once the judge appoints the CFI, the parties will each have an initial meeting to discuss the process, sign required documents and ask any initial questions.

The parents will fill out questionnaires and provide the CFI with the information they feel is important.  The CFI will visit each parent with the children in their homes and interview any other key witnesses.

The CFI then drafts a report for the judge, making recommendations regarding the best interests of the children.

 

How Much Does a CFI Cost?

The retainer is $2750.  This must be paid in full before the CFI can begin.  The Court will determine which party is responsible for paying the retainer.  Often, it is shared between the parties equally.

Unless the Court makes an exception, no more than $2750 may be charged for each investigation.  If the CFI is called  to testify in Court, there is an additional charge of up to $500.

For parties with very limited incomes, the Court may determine that you qualify for a State Pay CFI appointment.