Tag: divorce

Can a Divorce affect Citizenship?

If you are thinking about divorce and either of you or your spouse are in the U.S. on a visa or green card, it is important to know how a divorce could impact your status and citizenship.

Divorce can have different consequences depending on the immigration status of the parties involved. For example, if you are married and in the US with green card status, a divorce will generally not affect your legal immigrant status, but if you have a conditional green card, you have to go through a process to prove your marriage was legitimate.

Divorce is never an easy process, but if you are not a U.S. citizen, it is important to know how a divorce could affect your immigration status. In this blog post, we will explore how divorces can impact citizenship and what steps you need to take to protect your status. We will also provide some resources for those who need help navigating these difficult waters.

Picture of a law book on immigration and citizenship.

Will divorce affect my citizenship?

If you are married to a U.S. citizen, you can apply for citizenship after three years instead of the normal five years. But if you get divorced before gaining citizenship, you will typically have to wait the standard five years.

If your marriage was real, you will be okay when applying for citizenship because the government will see that your divorce was simply a bump in the road, not an indication that your marriage was fake from the beginning.

But if your marriage wasn’t real, then you’re just using divorce as a way to get what you want, and that’s not fair to the people who have actually gone through the process of obtaining citizenship the correct way.

The government does investigate marriages to determine if they are legit. So please, think long and hard about whether or not your marriage was actually real before you apply for citizenship.

If the divorce is finalized before the green card is issued, the immigrant cannot receive a green card based on their marriage to a US citizen. This is because the divorce ended the
conditional permanent residency that was provided based on being the spouse of a US resident.

Therefore, the spouse would not receive a green card and would not be able to become a US citizen. This rule exists primarily to prevent individuals from entering into fictitious marriages and divorcing while a green card application is pending.

Immigrants who file for divorce before the waiting expires will not be able to obtain a
green card. However, the spouse may file a waiver application to prove that their intentions were honest when they entered into the marriage.

Picture of an immigrant

What happens if I get a divorce during the immigration process?

When a couple has been married for less than two (2) years at the moment of the green
card interview with U.S. Citizenship and Immigration Services (USCIS), the immigrant will
receive a “conditional green card.”

This green card is valid for two (2) years. If you’ve been married more than two years and then filed, then you’re going to get a permanent green card. The distinction is critical in divorce cases, so if you only have your conditional green card and then get divorced, you have to prove in court documents that you were loyal to your spouse. 

But if you get divorced before you get your conditional green card, then you will be
unable to qualify for a green card. And so the filing itself will be canceled, and you will lose your benefits of getting a green card in the first place.

Can I get citizenship after a divorce?

If you have a permanent residency and you are divorced, then it does not matter at that point because, by that time, you already have a permanent green card. If you are divorced, then by the time you apply for citizenship, the only thing that you will not be able to apply for is citizenship based on a three-year marriage to a US citizen.

You have to wait five years. So, to summarize this, if you are married to a US citizen, and you are in the process of your green card application, and in the process of a divorce or you get divorced, and that divorce becomes final, the interview will not occur.

It’s going to be very complicated because, at that point, immigration would determine that you are not together anymore before even getting the conditional green card, and most likely, that case would fail.

Now, there are exceptions, even if you are in the early stages of filing the adjustment of status and not getting to the interview and you are being, for example, abused. So, despite the divorce, you can still get a green card if you go through an abusive process with an abusive spouse.

How long after receiving citizenship can you divorce?

There is no specific time duration for divorce. However, if you have a conditional
green card, it’s better not to divorce your spouse. But if you do divorce, you have to prove through documents in court that you were loyal to your spouse.

On the other hand, if you are a 10-year green card holder, the divorce will not affect your citizenship because green card holders are usually unaffected by divorce.

Applicants who are already lawful permanent residents with a 10-year green card may file another application or petition with U.S Citizenship and immigration services. 

Is it hard to divorce an immigrant?

It is not that easy. If you are a US citizen who previously sponsored your immigrant
you and your spouse agreed to cover all of his or her expenditures, you can divorce your spouse, and if there are any expenses for the spouse’s healthcare or other expenditures, the government will order you to pay them or may ask you to pay at any moment.

Similarly, if you divorce your US citizen spouse, it may result in deportation or it may affect your immigration proceedings. Furthermore, you won’t be able to get legal status if you’re an illegal immigrant married to a U.S Citizen from another country.

Under US law, children born to illegal immigrants must be deported with their parents and are forbidden from re-entering the country until they turn 21.

Picture of a couple meeting with a divorce attorney.

What happens if I divorce my immigrant spouse?


Divorce does not affect an immigration status if he or she is already a permanent resident when the marriage ends. However, if and when the person applies for naturalized U.S. citizenship, the authorities may re-examine whether the marriage was legitimate in the first place or not.

Especially if you are on conditional resident status, the court may check that, before the
marriage, your intentions were real. Written statements from people who knew about your relationship or marriage and where you have been living together, such as evidence of financial commingling, can be used to show that your intentions of marriage were real.

So, if you intend to apply for citizenship, you should be prepared to go into it with evidence that the marriage is genuine.

How long do you have to be married to receive a ten-year card?

To change your spouse’s status to conditional residency, you must wait at least two years.
If a couple is still married, the immigrant may file Form I-751 (Petition to Remove Conditions of Residence) with USCIS to remove the conditions of the two (2) year conditional green card, to which the immigrant would receive a ten (10) year card. It is necessary to file the petition within the final 90 days before the green card expires.

Does divorce affect your ten-year card?

If a couple is already lawful permanent residents with a 10-year green card, a divorce is
normally unaffected. You have nothing to worry about because there is usually no reason for USCIS to assess your petition following a divorce, so don’t be concerned.

However, if the couple divorces before the two (2) year green card expires, the immigrant
may not petition to receive a ten (10) year green card unless it was for the following: death; adultery; or abuse which includes physical, mental, sexual, or financial.

If you have additional questions about divorce, contact our office; we are an experienced family law firm with offices in Hammond and Livingston, Louisiana.

Disclaimer: The Law Offices of Sonja Bradley provided this information as a courtesy, and it is not intended as legal advice.

Are Divorce Records Public in Louisiana?

Going through a divorce is tough and can get ugly. There are usually tons of documents filed, especially if alimony and child support are involved. Having sensitive documents in the clerk of courts office raises an issue, are divorce records public in Louisiana?

Yes, most of the documents are part of the public record unless there is a specific reason they should be sealed.

Although most documents are public, there are some steps you can take to limit access to your divorce documents by the public.

What records are public?

There is no federal constitutional provision that gives the public the right to access judicial records and proceedings. However, the United States Supreme Court established that a trial is a public event, and all information is public property. (Check out the case of Craig v. Harney, 67 S.Ct. 1249, (1947) to learn more about open access to records.)

Divorce documents filed with the clerk of court are considered public records. These documents must be kept by the court and are available to the public, meaning any person can inspect, examine, and copy the filings regardless of the purpose.

The reason people don’t regularly access these records is they’re unaware of the process required to retrieve the documents, or they are don’t know the materials are publicly available. And of course, there is the expense; governments do not provide copies for free.

However, governments have made it easier and cheaper than ever to obtain public records. Most documents can be assessed through the clerk of court’s website for a minimal fee. So, for a small fee and a little knowledge, anyone can obtain a copy of your “confidential” divorce documents.

Sealed Records

When a court deems records are sensitive and should not be public, they can enter an order to have the records sealed. Individual documents could be sealed or the entire divorce proceedings.

When a record has been sealed, a person must obtain a court order to view the documents. For example, a court may seal divorces that deal with children, domestic violence, or sensitive business information. They might also seal documents that contain false accusations that would be harmful and create undue harm.

Sealing your records

To have your documents sealed, you need to file a motion with the court requesting the records be sealed. In the action, you will need to convey the reasons you believe sealing the documents is necessary.

Just because you file a request, it is not automatic that the court will grant your motion. You need to provide proper reasons before the judge agrees to seal your case. You can’t just claim it will be uncomfortable for you if the record isn’t sealed.

The Louisiana Supreme court took up this issue in the Copelands divorce case. Al Copeland, the founder of Popeyes Fried Chicken, requested his divorce records be sealed from the public. The New Orleans Times-Picayune wanted to see the documents and filed a suit to obtain access.

The district court and court of appeals agreed with the Copelands that the documents should be sealed, but the Supreme Court disagreed. They found that there may be some justification for sealing portions of the proceeding, but a blanket order sealing the entire record was not warranted.

If you file a motion to seal your divorce proceedings, it would be advisable to request specific pages or parts of documents to be redacted and not file a motion to have the entire record sealed.

If you need help with your divorce, contact our office to get an experienced family law attorney. We have offices in Hammond and Livingston, Louisiana.

How Do You Serve Divorce Papers in Louisiana?

You’ve decided to file for divorce, now what? When filing for divorce, you must follow established procedures. One essential step in the process is serving your spouse with the documents. So, how do you serve your spouse divorce papers in Louisiana?

Lousiana law allows 1. Service by the Sheriff’s office 2. Service by a qualified person 3. Waiver of Service, 4. Appointment of a curator or 5. By certified mail, in particular, circumstances

Soon after you file for divorce, you should serve your spouse with the divorce papers. Louisiana law establishes various ways to serve your spouse and also provides a method to proceed with a divorce in cases when a spouse can’t be located.

Service of Process

Delivering the petition of divorce to your spouse is “service of process.” Personal service is achieved by serving the documents in hand to the named defendant (spouse) in the divorce proceedings. Personal service is required in most instances, but there are exceptions, which we will address.

Louisiana law regarding service of process for a petition for divorce can be found in the Louisiana Code of Civil Procedure. The relevant section follows:

Art. 1231.  Types of service; time of making

Service of citation or other process may be either personal or domiciliary, and except as otherwise provided by law, each has the same effect.

Service, whether personal or domiciliary, may be made at any time of day or night, including Sundays and holidays.

Art. 1232.  Personal service

Personal service is made when a proper officer tenders the citation or other process to the person to be served.

§3204.  Service of process

A.  In a suit under R.S. 13:3201, a certified copy of the citation or the notice in a divorce under Civil Code Article 102 and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.

B.  If service of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091.

C.  Service of process so made has the same legal force and validity as personal service on the defendant in this state.

D.  For purposes of this Section, a “commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:

As you can read there are numerous ways to effectuate service. Let’s look at the different ways a spouse can be served with divorce papers.

Personal Service by the Sheriff’s Department

“Personal service” of divorce papers by the Sheriff’s office is the most commonly used method. When you initially file your divorce papers at the courthouse, request your spouse be served by the Sheriff with a copy of your filings

The parish charges a fee for providing this service. This method is the easiest because they have the staff and will file confirmation with the court to confirm they have successfully given your documents to your spouse.

Louisiana statute authorizing service by the sheriff is Art. 1291.  Service by sheriff and states as follows:

“Except as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending.”

You can click on this link 21st JDC to check the prices charged for the Sheriff’s office to serve your documents.

Personal Service by Private Adult

In order to have a private party qualified to serve your documents, he must be approved by the court. You will have to file a “Motion to Appoint a Private Process Server.” In your motion, the named individual must meet the following criteria:

  • A person must be over the age of majority;
  • Not a party in the litigation;
  • Resides in the state;
  • The court deems qualified to perform the duties required.

The Louisiana statute authorizing service by a private person is Art. 1293 and states as follows:

Art. 1293. Service by private person

            A. When the sheriff has not made service within ten days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, whichever is earlier, on motion of a party the court shall appoint a person over the age of majority, not a party and residing within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs. Service of process made in this manner shall be proved like any other fact in the case. Any person who is a Louisiana licensed private investigator shall be presumed qualified to perform the duties required to make service.

            B. In serving notice of a summary proceeding as provided by Article 2592 or a subpoena which is related to the proceeding, on motion of a party the court shall have the discretion to appoint any person over the age of majority, not a party and residing within the state, to make service of process, notices, and subpoenas in the same manner as is required of sheriffs, without first requiring the sheriff to attempt service. The party making such a motion shall include the reasons, verified by affidavit, necessary to forego service by the sheriff, which shall include but not be limited to the urgent emergency nature of the hearing, knowledge of the present whereabouts of the person to be served, as well as any other good cause shown.

            C. In addition to those natural persons who the court may appoint to make service of process pursuant to Paragraph A or B of this Article, the court may also appoint a juridical person which may then select an employee or agent of that juridical person to make service of process, provided the employee or agent perfecting service of process is a natural person who qualifies as an agent for service of process pursuant to Paragraph A or B of this Article.

            D. In addition to the provisions of Paragraph A of this Article, when the citation or other process is a temporary restraining order, protective order, preliminary injunction, permanent injunction, or court-approved consent agreement as referenced in R.S. 46:2136.2(B), the person making the service, or his designee, shall transmit proof of service to the judicial administrator’s office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after making service, exclusive of weekends and holidays. This proof shall include, at a minimum, the case caption, docket number, type of order, serving agency and officer, and the date and time service was made.

Waiver of Service

If you and your spouse are in agreement and plan to work together on the divorce, your spouse can agree to accept the divorce petition and summons. Cooperation is a much better option than having to spend money on for a sheriff’s deputy or private process server to track down your spouse tho serve him.

Ideally, your spouse will agree to waive the service of your divorce papers. If they decide to forgo formal service, they must accept the documents from you and sign a waiver of service and citation.

Once you have the signed waiver it must be filed with the court in place of the return service document. You can find an example of a waiver document here. The statute addressing the waiver of service is Art. 1201 the text of the law follows:

Art. 1201.  Citation; waiver; delay for service

A.  Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code.  Without them all proceedings are absolutely null.

B.  The defendant may expressly waive citation and service thereof by any written waiver made part of the record.

C.  Service of the citation shall be requested on all named defendants within ninety days of commencement of the action.  When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing.  The defendant may expressly waive the requirements of this Paragraph by any written waiver.  The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.

D.  If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Article, notwithstanding insufficient or erroneous service.

When You Can’t Find Your Spouse

If you have exhausted the sheriff department and a private process server and are still unable to locate your spouse to serve your divorce papers, you can seek to have a person appointed as his curator.

When a curator is appointed, you must provide him with all the information you have that could lead to your spouses’ whereabouts. The curator will then take steps to locate the missing spouse.

If, after due diligence, the curator is unsuccessful in locating your spouse, he can send certified mail to his last known address and put a notice in a local newspaper. After taking these steps, the curator can testify to the court about the steps he took to locate the spouse.

Louisiana Service on a Non-resident

Louisiana allows service on a non-resident in certain circumstances. Louisiana Revised Statute RS 13:3201 states the following:

§3201.  Personal jurisdiction over nonresidents

A.  A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:

(1)  Transacting any business in this state.  

(2)  Contracting to supply services or things in this state.  

(3)  Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.  

(4)  Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.  

(5)  Having an interest in, using or possessing a real right on immovable property in this state.  

(6)  Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.  

(7)  Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.  

(8)  Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.  

B.  In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.  

If you have served your spouse under the rules of Revised Statute §3201 you need to file an affidavit with the court. A form affidavit can be accessed by clicking here.

ResourceS

Divorce is an emotional drain, especially when trying to navigate the court system by yourself. If you need help with your divorce, contact our office. We have the compassion and experience you need.

What Are The Different Types of Divorces In Louisiana

The Types of Divorces in Louisiana

Things You need to know about Divorce In Louisiana.

Who can file for divorce in Louisiana?

A person can file for divorce in Louisiana if he/she or their spouse has been living in the state for at least six months.

What Grounds can You File for Divorce?

In Louisiana, except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:

(1) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed.

(2) The other spouse has committed adultery.

(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

(4) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.

(5) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse. Louisiana Civil Code Article 103 ‍

No-Fault Divorces In Louisiana

Louisiana Civil Code Article 102 or Article 103(1) is the no-fault divorce statutes.

To be eligible to file under Article 102, you and your spouse must live separate and apart for a minimum of 180 days before awarded a judgment of divorce.

Article103(1) requires that you and your spouse must have already lived separate and apart at different residences for at least 180 days before you can file for divorce.

There is a caveat to these statutes; if there are minor children involved, then the required separation time increases to 365 days.  Also, separate and apart means no reconciliation during the period.

Which divorce will be best for you, 103(1) or 102?

The divorce you choose depends on your circumstances. If you have been separated from your spouse for over 180 days, and have no minor children at home, then a 103(1)divorce is the fastest means to finalize your divorce.

However, the decision is complicated when you add other factors; for example, if you and your spouse are separated ut, the separation period is only 100 days.  In this scenario, it may be advisable to not file for divorce now but rather to wait 80 more days and file.  By going this route, your divorce could e granted quicker, and you may even avoid a hearing and possibly save some expense.

But you may not want to wait to file your divorce papers. In that case, you would file for an Article 102 divorce and time would begin to run anew, meaning after the passage of 180 days from the date of filing the divorce could e granted. Some individuals choose this method because the filing of the divorce petition gives them peace of mind.  After considering your options, you have to decide what is most important to you.

What documents will you need to file?

Many of the documents are the same regardless if decide to file for a 102 or 103(1)divorce:

  • Petition
  • Acceptance of Service and     Waiver of Citation and All Delays
  • Settlement Agreement
  • Judgment
  • Child Support Worksheet and Parenting Plan (if minor     children involved)

For an Article 102 divorce, you will also file a Rule to Show Cause.

However, for Article 103(1), you will file four additional documents:

  • Verification
  • Motion for Preliminary Default
  • Affidavit of Correctness in  Lieu of Testimony

Motion for Confirmation of Divorce Judgment of Default Without a Hearing

Procedure;

For a 103 or 102 divorce, you file a Verified Petition for Divorce with a signed Acceptance and Waiver of Service by your spouse. An Article 102 divorce, requires the filing of a Rule to Show Cause/Rule for Final Divorce with Verified Affidavits and Defendant’s Acceptance and Waiver of Service of the Rule to Show Cause. These documents must be filed 365 days or six months from the date your spouse signed the Waiver of Service.  The length of time is dependant upon whether you have children.

After the documents are filed, a hearing will be scheduled to finalize the divorce. You need two witnesses at the hearing. The witnesses must confirm under oath to knowing that you and your spouse have lived separate and apart without reconciliation for 180 days (365 days if the couple has minor children together).

An Article 103(1) divorce requires an Affidavit with the Petition swearing that the information contained in the Petition for Divorce is truthful and accurate. In 15 days (30 days if your spouse doesn’t live in Louisiana), request that the Court Clerk set your case for a Preliminary Default. In a couple of days, the judge will finalize the divorce or may decide to first require a Confirmation of Default hearing before completing it.

Fault Divorces in Louisiana

A spouse who seeks a divorce based upon fault does not have to wait for the legal delays associated with no-fault divorces. Fault divorces are adultery and conviction of a felony. There is no waiting period required for a fault divorce. If your fault divorce is based on adultery, you have the burden to prove the allegation.

‍ (1) The other spouse has committed adultery.

To establish adultery during the marriage, the burden of proof is on the person alleging adultery. What is adultery? Adultery is sexual intercourse outside the marriage; some courts have included oral sex as sexual intercourse. The burden of proof is by a preponderance of the evidence, and the accused is presumed innocent. It may be necessary to provide witnesses and evidence from a private investigator to prove your case.

‍(2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

To establish a divorce based upon a felony, you only need to provide proof to the court of your spouses’ conviction and sentence. The delays for appealing the conviction or the fact that he has or has not served his punishment will not affect the divorce.

‍(3) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.

A divorce based upon abuse protects spouses and children from dangerous situations. Before the passing of this statute, abused spouses were required to remain married during the typical no-fault delays. This statute will allow victims to close an ugly chapter of their life.

(4) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.

A divorce based upon a protective order or an injunction is another tool to allow victims of abuse to move forward with their lives. The divorce can be granted with documentary evidence, giving the victim the benefit of avoiding additional testimony in hearings surrounding the abusive events.

Click this link to read the statute.‍ To learn about intrafamily adoptions, click here.

Contact Sonja Bradley your attorney in Hammond Louisiana, Denham Springs, Louisiana, Ponchatoula Louisiana, Livingston Louisiana, Albany Louisiana, Amite Louisiana, Walker Louisiana, and surrounding areas.