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GeorgetownLawyr
GeorgetownLawyr, Family Law Attorney
Category: Family Law
Satisfied Customers: 11948
Experience:  Experience: contested Divorces, custody disputes, Post dissolution modification, child support issues, adopti
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My wife has abandoned me for the last 2 months and is now forcing

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<p>My wife has abandoned me for the last 2 months and is now forcing a legal seperation through her lawyer in North Carolina. We are both indian citizens and our marriage happened in India. I am here on a work visa (H-1B) while she is on a dependent visa. My point is that I do not want to submit myself to NC jurisdiction for any divorce/legal seperation proceedings and want any such proceedings in India. However my wife wants to live in US. Can she force me for legal seperation? She left the house and now she is going to court that I support her while I have been paying all her bills all this time. Her demand is to get her a seperate apartment and stuff so that she can live easily while I am telling her she can come back to her home. Can she really get a one-sided order against me? My only defense is that the divorce proceedings take place in India since we are indian citizens and marriage was solemenized there. Is that acceptable in court in NC? Can i refuse legally to accept NC jurisdiction?</p><p>We also have a 4 yr old son who is an American citizen. My only intent is not to open an divorce case here in US since a divorce verdict is US can be challenged in Indian court again. The case she she is trying to bring against me is that I need to legally support her and my child which I am more than willing to do and already doing but without any legal seperation document.</p>
Submitted: 3 years ago.
Category: Family Law
Expert:  GeorgetownLawyr replied 3 years ago.
Hello, My name is XXXXX XXXXX X'll be helping you resolve your matter.

Please remember there may be a delay as I may be helping other customers.

How long have you lived in NC?
who do you think would challenge the divorce when you return to India, you or her??
Customer: replied 3 years ago.

We have been living in NC for past 3 yrs. I think she will be challenging the divorce in India.

 

The whole issue is money. She first wants a divorce here to divide the money 50-50 and then file another case in India to get hold on the property we jointly own in India.

Expert:  GeorgetownLawyr replied 3 years ago.
When are you both planning to return to India?
does she realize the minute she divorces you, that she is out of status with immigration??
Customer: replied 3 years ago.

We have no plans to return to India as of now.

 

She knows that she is out of status the moment she divorces but as I said she first wants to get all the money she can based on NC law and then go to India.

Expert:  GeorgetownLawyr replied 3 years ago.
Ok, thanks. now to your questions:

Can she force me for legal separation?
Reply: Yes she can. In the u.s. if a person does not want to stay in a marriage they can leave and no one can force her to stay if she doesn't want too.

She left the house and now she is going to court that I support her while I have been paying all her bills all this time. Her demand is to get her a seperate apartment and stuff so that she can live easily while I am telling her she can come back to her home. Can she really get a one-sided order against me?
Reply: it's not one-sided, it is what is provided for under the law in NC. If a married couple separates then she is entitled to support for her and your child.

My only defense is that the divorce proceedings take place in India since we are indian citizens and marriage was solemenized there. Is that acceptable in court in NC?
Reply: No, it is not. You are residents of the state of NC and after 6 months of living there either party can file for divorce. arguing that NC does not have jurisdiction will not work, when you have been living there 3 years and it is the last marital home you have shared.

Can i refuse legally to accept NC jurisdiction?
Reply: You can try but it is doubtful you would win that argument for the reasons I just stated in the prior answer.

</p><p>We also have a 4 yr old son who is an American citizen. My only intent is not to open an divorce case here in US since a divorce verdict is US can be challenged in Indian court again. The case she she is trying to bring against me is that I need to legally support her and my child which I am more than willing to do and already doing but without any legal seperation document
Reply: It's unfortunate that she does not want to live with you but again it is her right not to do so and she is entitled to support from you until the divorce is final. If you want you can bring the India property into the divorce and have the u.s. court decide that issue as well so you do not have to deal with two divorces but otherwise she is entitled to get a divorce here and support until it is final.

I hope this clarifies.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work (as you would like to receive credit for your work). Positive feedback is also appreciated, if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is not required. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice. If you specifically want me to answer a future question put “FOR GEORGETOWN LAWYER” in the subject line and I will reply asap.
Expert:  GeorgetownLawyr replied 3 years ago.
If you have any other questions please let me know, if not I would appreciate if you click ACCEPT so that I may receive a small part of your deposit as payment for my time and answers, otherwise the website keeps the entire amount and I receive nothing. thank you and kind regards.
Customer: replied 3 years ago.

Well I am still confused, The mariage was solemenized by Hindu Marriage Act, 1955 in India.Section 19 of the Hindu Marriage Act, 1955 clearly envisages that every petition under the Hindu Marriage Act for any relief being sought for by either of the parties ought to be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized. Both the parties are Indian Citizens and holding Indian passports and their marriage having been registered under the Hindu Marriage Act, 1955 the same can only be dissolved or any disputes inter-se can only be adjudicated upon under the provisions of the Hindu Marriage Act, 1955. Only that Court will have the jurisdiction to decide the inter-se disputes between the parties which shall follow the provisions of Hindu Marriage Act, 1955 and is governed by the said law.

 

So how can I be forced to go for a divorce in NC? If I simply refuse for a legal seperation or divorce how can a court force me for that?

This is a civil matter and since I am not an American citizen why will I be forced to abilde my US court civil ruling when my own country won't recognize that divorce. Why can't I seek a judgement to appl to India jurisdiction?

 

There are no criminal charges here or violation of law for a mandatory court proceeding.

 

 

Expert:  GeorgetownLawyr replied 3 years ago.
Ok, thanks. that Act applies if you are in India. you are no longer in India and you may want to use that to argue the NC court has no jurisdiction because you have both agreed that only the court in India can resolve disputes, so that is an argument you can make.

here is the problem, you keep saying how can a court force you...a court is not forcing you to do anything. by the same token how can she be forced to live with you if she doesn't want too. you see the problem with the word force. I understand cultural and countries differences myself and you have to understand that in the u.s. people have certain rights. by living in a state and being a resident of that state you have given that state certain powers. You can refuse to separate but she has the right to separate and the state of NC will protect her right to do so. Now when you get back to India that is an entirely different story. You do not have to be a u.s. citizen for the state to have powers over you. you live in that state and you benefit from the services of the u.s. government; you are employed by a u.s. company...all of these factors are in play. If you take the benefits of living in the u.s. then you have to carry the burdens as well. If you do not want the NC court to have any say, then make the jurisdiction argument but if that fails you can either leave and go to India which would defeat the NC court but if you stay in NC, you will be ordered to support her when she separates. I really hope I am saying it in a way that you can understand what I am saying. I would also urge you to see a local attorney as well, who can defend you so that you do not end up paying so much to her.

I hope that clarifies. Please click ACCEPT so that I may be paid a small portion of the deposit for my time and answers. I am still happy to follow up after you click ACCEPT and give me credit. thank you and kind regards.
Customer: replied 3 years ago.

Well I am not forcing her to live with me against her will. My only point is that if she wants to seperate then she should go to India's jurisdiction.

 

The issue is that even if I submit to NC jurisdiction for divorce and we do get divorced; she can still go and file another case in India's jurisdiction wherby the Indian court may simply not recognize this ruling and hence another case reopens against me in India.

 

Following is a link from one of the experts on Indian divorce law

 

http://in.answers.yahoo.com/question/index?qid=20090606082343AA1BeZH

Expert:  GeorgetownLawyr replied 3 years ago.
That's all well and good IF you are in India, but you are not. therein lies your problem. As I said make the jurisdiction argument and then it is up to the judge whether or not to allow her case to move forward, that is all you can do. Your argument is not with me, your argument is with the court in NC. Good luck and please click ACCEPT so that I may receive credit as you would want to for your job. Thank you and kind regards.
GeorgetownLawyr, Family Law Attorney
Category: Family Law
Satisfied Customers: 11948
Experience: Experience: contested Divorces, custody disputes, Post dissolution modification, child support issues, adopti
GeorgetownLawyr and 8 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Relist: Other.
Need 2nd Opinion
Expert:  GeorgetownLawyr replied 3 years ago.
No problem if you want a second opinion but it would be nice if you would click ACCEPT and give me credit for all my time and answers in fairness but if you are ok with not doing that, then ok.
Customer: replied 3 years ago.
When can I get a second opinion on this?
Expert:  GeorgetownLawyr replied 3 years ago.
It is up to the other experts, they can see the question on the board and they make the choice whether to come in and answer. You should post it as a new question and that will get a faster reply. I will also come out of the question so other experts know I am not handling this any more. I hope that helps. Thanks and good luck with everything...I like your jurisdiction argument by the way and think it has possibilities. Take care and thanks for giving me credit.
Expert:  Law Educator, Esq. replied 3 years ago.
Actually, your previous expert was 100% correct in her responses. If you are residing in NC, the NC court can take jurisdiction if she files for divorce in NC. However, if you choose you can go to India and file for your divorce there before she files in NC and that would certainly stop the NC court from taking jurisdiction over you and if she tried to file in NC after you file in India you would prove that the case was filed in India first and they would refuse to take jurisdiction in the case and defer to the jurisdiction of the Indian Court. Other than this, your previous expert was 100% correct.
Customer: replied 3 years ago.

Fair enough. so my next question would then be. If I understand NC correctly, the husband and wife need to live seperately for 1 year and 1 day before getting a divorce. During this time frame they can sign a mutually agreed legal seperation document. This is not mandatory but prefered.

 

However, I cannot be forced to sign a legal seperation document. Hence if I refuse to sign the legal seperation document then what recourse can my wife take? Does she still need to wait for 1 year or can she directly go to divorce court?

 

Secondly my wife through her lawyer is asking that I arrange for an apartment and other living expenses after living with friends for 2 months. I communicated to her that she can come back to our apartment however she is insistent that she needs a seperate place to live? Also I have been paying all her living expenses for the past 2 months. So can she still go to court and get an order for me to get her another place to live? I willing to give her our apartment and move out if she wants but she is persistent that I get a seperate place for her. Is this is a reasonable demand in court of law?

 

Expert:  Law Educator, Esq. replied 3 years ago.
If you refuse to sign the document it does not matter since under NC law, legal separation begins the date the married couple lives separate and apart. The 1 year period still must be followed, but your wife can go to court and file for support/maintenance during the separation period if you refuse to sign an agreement. She can go find another place and it is considered reasonable by the court for her not to want to live in the former marital home/apartment and the court can order such payment.
Customer: replied 3 years ago.

When you state "it is considered reasonable by the court for her not to want to live in the former marital home/apartment and the court can order such payment."

 

Does this still hold good even when I am offering to move out of the house since she doesn't want to live with me? My wife does not have a job so even if she asks for support/maintenance can she still claim right to my other assets during this period? For e.g. she has been using my car, credit cards etc.

 

Also what if I leave NC or US then how does that court order effect me?

Expert:  Law Educator, Esq. replied 3 years ago.
Yes, even if you want to move out of the apartment, the court can still order you have to pay for a place for her to reside other than the marital home.

If she asks for spousal maintenance that is allowed. As far as her claims to other marital property she can get orders for access to her share of that property as well. You do NOT have to let her use your credit cards, but they may grant her use of the marital vehicle. This is why separation agreements are used.

If you flee the country, then if there is a treaty with your country regarding enforcement of marital orders, then she could get them enforced in your country against you, but if not, then they could not touch you while you remain in your country, but they could refuse to allow you back into this country or could even arrest you for contempt of court upon reentry to the US. Also, if you leave the country, you may get out of paying her anything, but she would get the divorce granted by default and the court would grant her everything she wants in the divorce and you would not likely get that overturned if she shows you fled the country to avoid the divorce settlement.
Customer: replied 3 years ago.

My idea is not to flee the country but I am here in US on a work visa. I cannot live unlimited in US and will have to go back to my country once my work visa expires.

 

So what can I do safegaurd myself that i do not become a convict just coz i have to go back to my country? Not just that if I have to go back to my country so has my wife since she is on a dependent visa.

 

Secondly on what grounds is the amount of spouse maintenance and child support decided during legal seperation? Do I have to pay both or just one?

 

Also if I file a divorce case in my country today then can she still go for spouse maintenance or in that case the court will not accept any petiton from her for legal seperation/spouse maintainence/child support/divorce.

 

I hope you understand that my issue is complicated since I am foreigner here. Any divorce proceedings here in the US may not be recognized in my country as per their laws. Since I will have to return to my country at some point in time in the next 2 yrs I want to be sure that I don't get into a mess when i get back home even after following US judicial system.

Expert:  Law Educator, Esq. replied 3 years ago.
1) There is a difference between leaving because your visa expires and leaving because you do not want to pay. Someone who leaves because their visa expires will still communicate with the court and can get a visa to attend court matters and will abide by court orders.

2) Spousal maintenance is based on her needs and if the court finds she can get a job and if she is willingly not getting a job. Child support is much different than spousal support as the amounts are set by the law based on how much you make each month.

3) If you file for divorce in your country today, then serve her, then the NC court would have no jurisdiction and as far as support this would likely end up under your country's jurisdiction.

I do understand the recognition of divorce in your country and the problems, but you also need to realize the court here will not leave her for 2 years with no support or assistance and will look for some happy medium to balance this out.
Customer: replied 3 years ago.

One more question, Her lawyer sent an email to me that she needs some arrangement for her to provide a place to live. When I sent her an email to contact me and discuss in detail they have not responded in last few days.

 

My question is that can she get legal seperation order ex-parte? Can she get an order from the court without her lawyer even discussing anything with me to provide for spousal maintenance and child custody? Or is the law that only if I refuse legeal seperation can she go the court.

 

Again my intention being that I do not want to take any legal step first to rile my wife since i want to save this marriage however at he same I want to be sure that I am not caugh offguard here.

Expert:  Law Educator, Esq. replied 3 years ago.
She can get a separation order ex-parte, but any support orders you would have to get notice for a hearing. She can go to court whether you agree to the separation or not if you will not agree to any settlement.

I do have some bad news for you though, as much as you want to save your marriage, if she does not want it, then your refusing to do anything or agree to anything will not save your marriage. The courts in the US will grant divorces even if one party does not want one.
Customer: replied 3 years ago.

Well ok i think this will be my last question but can she go the court before I refuse to settlement?

 

I mean for e.g. right now she or her lawyer have not served me with any agreement nor have i refused to anything. I am assuming that she can get an ex-parte seperation only if I refuse to any settlement not before that? Or can she get ex-parte even now?

Expert:  Law Educator, Esq. replied 3 years ago.
She can go to court before you agree to a settlement, especially if she or her attorney believe you are dragging your feet on settlement.

They do not have to serve you an agreement if they have tried to get you to agree and you are not responding or not agreeing. Certain things they can go to court ex-parte (such as temporary custody and child support) and others they can just go to court on and a hearing would be set (such as spousal support and use of marital property).

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