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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 116723
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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My wife and I filed in Canada 2 years ago and the process

Customer Question

My wife and I filed for separation in Canada 2 years ago and the process has not moved forward. I want to get the divorce settled but have come across many obstacles. I am currently in the US on a TN Visa and have been residing here for over a year. My
wife is in Turks and Caicos and has been residing there for over 3 years. Each of us have a child with us. We are both desiring a divorce and agree on child custody. When speaking to other lawyers, the issue with getting a divorce in Canada is that neither
of us have resided in CA for the past year. Could we use the cottage as a residence? I still also have a valid Canadian drivers license as well. Our taxes are not in order as we had an accountant who picked up and ran after incorrectly filing for us as well
as many of our doctor friends. It is in a litigation process. In addition, we were not married in Canada, we were married in Antigua. Question: Is it possible to get a divorce in Canada with these issues? Question: If we filed taxes separately and she owes
more taxes than I do, am I responsible for paying some of hers? Although my wife and I have the same degrees, Doctor of Chiropractic, she is under the assumption that I should give her child support and alimony. She has her own clinic in Turks and Caicos,
I have retired from chiropractic and am now a consultant for doctors. Each of us have a child that resides with us. When we initially separated, our in income difference was around $80,000 difference gross income before taxes (mine being higher). Since I moved
to the States, my business has slowed greatly and our income is equivalent to hers. Question: Will I need to pay her alimony and child support? Question: Can we get a divorce without the child support and alimony figured out since child custody is not an issue?
When we have tried to file in the US where I have live for over a year isn’t allowed because I do not have a tax ID here or SSN supposedly. Question: Can I file for a divorce in the US without these since I have resided here and have a valid Virginia Drivers
License? My TN Visa ends in June of 2016. I would like to be able to marry my girlfriend before then. What steps do I need to take to make this happen? Is it possible in either Canada or the US? Turks? I have a hard deadline that I need to meet. Please help.
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Because the case was filed in Canada first, they have jurisdiction over this matter. The US Court could not take jurisdiction unless you and your spouse agree to dismiss the case that was filed in Canada. If your spouse agrees to dismiss the case in Canada, you could then possibly file it in the court in VA and obtain a divorce in VA.

IF you both have a child with you, then there is not likely going to be any child support ordered in VA to be paid by either one of you, especially since your incomes are now almost equal.

However, before you can do anything in the VA courts, or even the Turks courts, you have to agree between you and your spouse to withdraw the case in Canada.

While the VA courts could indeed hear the divorce, you need to be aware it could have an impact on your TN visa status, because for the VA court to hear the case you have to claim domicile in the US and claiming intent to make VA your domicile could cause your TN visa to be revoked as it is a visa that is not intended for the holder to seek permanent status in the US. The VA court has held a person's TN visa status is inconsistent with a domicile requirement that is needed for the VA court to have jurisdiction in a divorce. See: Hanano v. Alassar, No. 169004, 2001 WL.(###) ###-####(Va. Cir. Ct. Jan. 23, 2001). In Hanano, the VA court ultimately took jurisdiction, but only after finding the party intended to establish domicile in VA, but again that can cause your TN visa to be revoked.

It is likely better to pursue the case in Canada or in Turks if she agrees to withdraw the case in Canada, so as to not hurt your TN status unless you have some other way to get visa status in the US.