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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience:  Attorney experienced in all aspects of family law
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Divorce questions around immigration, property and alimony

Customer Question

I would like to file for divorce from my husband. He is currently in the USA on a spousal visa attached to my working visa. He is requesting money per month for living expenses even though he has already moved in with another woman. I have several questions surrounding the topics of alimony, immigration, property he has of mine and property I have of his. Quick replies appreciated.
Submitted: 2 years ago.
Category: Family Law
Expert:  Brandon M. replied 2 years ago.
Hello there:

I am glad to help in whatever way I can. What are your questions?
Customer: replied 2 years ago.
I will provide a good bonus if you can help me answer several questions. I appreciate your help in advance. Let me start by explaining the situation.

I married my husband in Canada about 1.5 years ago. He is British and I am Canadian. We moved to the USA because I had a job offer. He is currently living here in FL with me on an O3 spousal visa. I have an O1 visa. He can't work on his visa and I have been supporting him since we got married.

A couple of weeks ago he left me for another woman. He will be moving in with his new girlfriend in a week's time. He has said in an email that he will not request alimony or any division of property. He then asked me if I would provide him with a set amount of money for three months to help him get back on his feet. I said I would if he would pay me back and if he agreed to give me collateral in case he doesn't (or leaves the country). I was going to speak to a lawyer to draft a loan document giving him a year to pay and allowing me to sell his collateral after one year if he has not.

This made him angry and he is no longer speaking with me. He has refused to co-operate on any further divorce proceedings but has my email saying I would give him money for the next few months. He expects a cheque each month.

First question: do I need to pay him this money?
Second: If I don't, can he go after me for alimony, drag out the divorce proceedings, or in any other way incur me money?

I have more questions but this one will be good to get answered first, thanks in advance.
Expert:  Brandon M. replied 2 years ago.
Hello again:

Your first question was whether you need to pay him the money that he has requested. Let me assume that the money requested as earned during the marriage or money that you brought into the marriage, as opposed to money that he brought into the marriage. Let me also assume that you are not under any court order to relinquish the funds. Under that assumption, there is no requirement to relinquish funds to a spouse so that spouse can co-habitate with a new girlfriend. In short, "no".

Your second question is whether he can go after you for alimony, drag out the divorce proceedings, or in any other way increase your financial burden. Please allow me to answer those separately.

First, the court "can" order you to pay alimony. The Florida courts consider 10 factors when awarding alimony and there is no bright-line rule to determine how much a spouse should receive, if a spouse should receive anything at all, or for how long the spouse should receive alimony. That said, on a 1.5 year marriage, unless there is a very significant disparity in your earnings and/or if he quit his career to advance yours, he would typically not be entitled to alimony. More significantly, if he chooses to cohabitate with a member of the opposite sex, it essentially nullifies his right to collect alimony during the period of co-habitation anyway, so he would be an all-around very poor candidate to receive alimony. Hypothetically, if alimony was awarded (which I would not expect under most any circumstance if he was cohabitating), it would typically be for a matter of months at most and the amount would be relatively small even if there was a significant earnings discrepancy.

Dragging on the divorce proceeding and increasing your costs is a different story. Either party can always make things more difficult, and that tends to increase the costs (especially if you are represented by an attorney). It is the situation where you cut your nose off to spite your face--he would be inflicting hardship on himself as well, but it is certainly possible that he could make things harder on you in the process. That is the nature of terrorism.


Let me know if further clarification is needed. Also, please feel free to ask me another question – if you’re a subscriber, you can do so at no additional cost beyond your monthly payment. Please bookmark my profile page here so you can come back and ask me a question anytime: http://www.justanswer.com/law/expert-trialmaster/. Thank you.
Customer: replied 2 years ago.
To add more information, he is unable to work on his visa. I earn $140K a year. We both left our jobs in Europe to help me advance mine in the USA. The plan was to apply for a green card this year so both of us could work. Does this change his chances for alimony and do I need to prove he is co-habiting? What do I need as proof?
I am a subscriber. Here are some more questions. I really appreciate your help.
1) He is unwilling to speak with me any further. I have all of his possessions and he has told me to deal with them but I would like to get them out of my house. He also has several big ticket items of mine, including a mobile phone and laptop with confidential legal documents, etc. that I would like back immediately. How do I get these items back and give him his items?
2) If he has said in an email that he will not come after me for alimony, is that legally binding?
3) If I paid for flights for him to see his family over Christmas and he asked me not to cancel them, does he owe me for his travel expenses? I booked them before I found out he was cheating and they were non-refundable.
4) How do I start filing for divorce? Do I need a lawyer or is there a way of doing it myself? Would you recommend I use a lawyer?
Thank you so much again. I am new to this site so please let me know about the financial side of things if it is not covered by the subscription.
Expert:  Brandon M. replied 2 years ago.
It is my pleasure:

1. Does this change his chances for alimony and do I need to prove he is co-habiting?

A. It typically would improve his chances, except in the event of co-habitation with a member of the opposite sex. The burden would be on the spouse claiming cohabitation to prove it.


2. What do I need as proof?


A. Like most words, "cohabitation" is not defined under the law in the state of Florida for all purposes. When a word is not defined under the law, the courts will interpret words looking at their plain meanings. Looking at the plain meaning, cohabitation means "living together."

If you are wondering what "living together" means, there is no bright-line rule; you have to look at the totality of the circumstances and oftentimes, if there is disagreement, it must be resolved by a judge. Personally, I would start by asking where the couple keeps their toothbrushes.


1) He is unwilling to speak with me any further. I have all of his possessions and he has told me to deal with them but I would like to get them out of my house. He also has several big ticket items of mine, including a mobile phone and laptop with confidential legal documents, etc. that I would like back immediately. How do I get these items back and give him his items?

A. Ideally, you would be able to sort it out between yourselves. If you can't work it out, possession during the pendency of the divorce can be decided by the courts upon motion to the courts. Once the divorce is finalized, personal property will be divided according to the order of the court. If no divorce is pending, the courts cannot get involved.

2) If he has said in an email that he will not come after me for alimony, is that legally binding?

A. The best way to answer that question is to say that it is relevant and it could only help your case, but it is unlikely to be binding.

3) If I paid for flights for him to see his family over Christmas and he asked me not to cancel them, does he owe me for his travel expenses? I booked them before I found out he was cheating and they were non-refundable.

A. That can be argued either way. If it was pre-separation, you would typically not be entitled a refund. If it was post-separation, you would probably have a decent argument for a partial refund, depending on the source of the funds, but he could argue that it was a gift in which case there would be no right to reimbursement. I wouldn't plan on getting refunded, but that issue will likely need to be settled either by agreement or by the courts.

4) How do I start filing for divorce? Do I need a lawyer or is there a way of doing it myself? Would you recommend I use a lawyer?

A. Assuming you meet the Florida state residency requirements, you would start by completing the standard divorce forms and filing them in your county court. You can get a forms packet from the court directly, or you can visit the following website:

http://www.flcourts.org/gen_public/family/forms_rules/index.shtml

Whether you can handle it yourself without the assistance of legal counsel depends on you. The family courts have gone to great lengths to make themselves more accessible to the public. They have partially succeeded--things are nothing like they were 30 years ago, but the process is not at all intuitive. Handling your own case is like preparing your own income tax returns; some people will always need professional assistance, some people are sophisticated enough to handle their own matter, but the majority of people can stumble through their own issues successfully as long as there is nothing unusually complex about their case. I would recommend that you at least consult with an attorney for an hour or two to help you organize your initial filings so you can at least start off on the right foot.

As for the subscription, the way it basically works is that follow-up questions to clarify an existing answer should be asked in the same question thread, but new questions should be presented in new threads. I can continue in the existing thread with any set of questions at my discretion and I have been happy to answer your questions all in this same thread, but for organizational purposes the website requests that new questions are presented in new threads, so that is the way to go in the future.

We have some great attorneys here, but if you would like to work specifically with me, the best way to ensure that your question reaches me is to ask for me by name in the opening of your question thread (e.g. "Attention B.T. Meyer" or even "This question is for B.T.") That way if I am not immediately available (I do eat, sleep, and operate a private practice when I am not answering questions online) the other experts can direct the question to me when I return.


Customer: replied 2 years ago.
Thanks for this information. I will "accept the answer" after your next reply and then continue with any additional questions in separate threads.

In your opinion, if I don't have evidence they are living together (only his word and I doubt he will admit to it in court), would I be better off paying him the payments per month if they total less than $3000? Do you suppose alimony would be greater than this if determined in his favor? What other tangible things can be considered as evidence (in other words, what do other people do in this situation)?

If I get a court order for him to return my possessions and he deletes information/files off of my computer, do I have legal rights?

I believe he has 30 days to answer my divorce papers once they are served, correct? If he does not reply, what happens? Do I get a divorce anyway?

You've been an amazing help, thank you.
Expert:  Brandon M. replied 2 years ago.
If you have been married for 1.5 years, you earn $140K per year and he has no income, and if he is willing to waive his right to alimony in exchange for $3,000, there is a very high probability that you would do better financially to meet his demand in most circumstances. I would strongly recommend that you have an attorney draft a binding agreement to that effect, but the odds would be that the offer is a good one.

You prove the facts in court just like you prove anything else in life. How would you prove that you went to the grocery store today? You might show a receipt of purchase. You may have a credit card record. Perhaps you ran into someone at the store that recognized you and would remember your being there. Maybe you were issued a traffic citation outside the store's parking lot. You would also have groceries from the store in your home. You also have your own account of events. Anything that tends to prove or disprove a material fact in dispute is evidence. Circumstantial evidence is enough as long as the burden of proof is met.

You also asked "If I get a court order for him to return my possessions and he deletes information/files off of my computer, do I have legal rights?" It would depend on the situation, and the answer depends on a lot of hypotheticals. It is normal to worry about those things, but I would suggest that it might be premature to worry about that right now--see what happens and if anything is erased or destroyed then it can be dealt with at that time.

The respondent to a divorce petition has 20 days to file and serve a response. If he fails to timely respond, the petitioner may file for a default judgment. This does not mean that his rights would be lost, but it would mean that he loses his right to participate in the process. The case would proceed from there.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience: Attorney experienced in all aspects of family law
Brandon M. and 7 other Family Law Specialists are ready to help you
Expert:  Brandon M. replied 2 years ago.
A quick point of clarification. I wrote "If you have been married for 1.5 years, you earn $140K per year and he has no income, and if he is willing to waive his right to alimony in exchange for $3,000, there is a very high probability that you would do better financially to meet his demand in most circumstances." This, of course, is in the context of your question regarding not having sufficient proof of cohabitation. Thank you.
Customer: replied 2 years ago.
Yes, thank you, I understand. I really appreciate your knowledgeable replies.
Expert:  Brandon M. replied 2 years ago.
Very good. Best of luck, and thank you very much for the positive feedback and bonus.

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