Legal Question in Family Law in Virginia
Help needed! Divorce by default of annulment?
I am engaged to a man who is in the middle of a divorce. He was married September, 2002, and separated from his wife April 5th. He is a permanent resident of the U.S.; however, she is illegal. She refuses to go back to her home country and has in fact relocated her four children from a previous marriage here with her. He started divorce procedings by having a separation agreement drawn. She originally agreed to sign; however,she is now refusing, stating that she is afraid that he will leave her without the ability to get a green card and she would rather he wait until she is eligible. Can this be considered fraud? Is there a way to obtain a divorce without waiting an additional six months from an obviously terminal situation?
2 Answers from Attorneys
Re: Help needed! Divorce by default of annulment?
No, the illegal spouse is not committing fraud by withholding her signature from the document for the reason(s) which she's offered, and your fiance is free to proceed in his divorce action as if all matters were contested.
Re: Help needed! Divorce by default of annulment?
It is not clear from the question whether yoiur fiance can file for divorce in Virginia or in Maryland. I practice law in Maryland and am not entirely familiar with Virginia family law, so I will answer based on Maryland law only. In Maryland, unless the wife has committed adultery or domestic violence, your fiance has no ground for divorce until they have been separated for a year with an agreement or for two years without her agreeing to the separation. In other words, the earliest he could file for divorce in a Maryland court would be April 6, 2004. It is not clear how soon his wife will be eligible for a green card, but she can insist that the separation was not voluntary and require him to wait until April, 2005. And whenever he files for a divorce, it takes at least several months before the divorce is final unless there is an agreement and the divorce is not contested. There is no fraud in her refusal to sign a separation agreement. I hope you haven't set an early date for your wedding.
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