Separation Agreement / I-751 waiver

[resilient 2]

Hello,

I've been married for 1 year this week, and just received today a Separation Agreement from my ex.

I will try to take it to a Legal Aid clinic for a free legal consultation (I am not working and can't afford an attorney right now)

My main question is: What kind of things should not be in a Separation Agreement? Things that can give me problems later when applying for a I-751 waiver.

FYI, we agreed to do it all in a peaceful way... we are not intending to blame each other and the such. But I haven't had the guts to read what his lawyer put in the agreement yet.

Also, what are my chances of being approved in the I-751 Waiver? I took quite a lot of evidence to the AOS interview and all was fine then. And now I also have a co-signed lease to add to it.

Does the timeline of when we started to have problems and when we stopped living together matters that much, as long as we married in good faith?

[Brother Hesekiel 2,236]

There is only one rule: you do not sign any separation agreement. Why would you?

[rika60607 215]

There is only one rule: you do not sign any separation agreement. Why would you?

You need a divorce if you want to remove conditions. Since you are not working and can't afford a lawyer, I assume you have no assets to protect during separation while waiting for divorce (that's what separation agreement is for). Don't sign a separation agreement. Sign a divorce.

[Anamaria2009 1]

Yep, you actually need either a divorce decree or .... you better prove a good ongoing marital relationship...

If you live in NYS, in theory, after 1 year from the separation, you can get a divorce decree but the trick is that the other spouse can have a change of heart and not agree to the divorce ...

The best way is for him to file for divorce and you won't contest it, then you will have a divorce decree in a few months. ...

Good Luck!

[Brother Hesekiel 2,236]

That was the case until recently, but now there's a waiver for people who are filing but not divorced yet.

Still, there's no reason to sign a separation agreement that the attorney of your wife crafted, unless it contains a surefooted clause that you will receive several million dollars more than you would receive in a regular divorce, based on the State you live in. And such an agreement would really have to be reviewed by a qualified attorney.

Again, what's the purpose of a separation agreement other than protecting one's assets? With "one's" I mean your wife's, not yours!

[resilient 2]

Hi all, thanks for the answers.

First of all, I'm a female, and my ex husband is the USC. I live in NY state. To get a divorce in my state, without accusing each other of all these horrible things that would grant us the decree here, the best way is to have a legal separation agreement signed, wait 1 year and then ask for a divorce. (yeah, it sucks, but...) We just don't want to accuse each other of anything and have it in papers, etc.

I might not have money - but his family does, but that doesn't matter as I don't want any of it. We signed a prenup before the marriage anyway. I married him for love and I'm really sad it didn't work out. We are in good terms in spite of everything. So, the signing of the agreement will be for the solely purpose of getting a divorce in 1 year from now - that's the best way we found to do it in my state.

I am not super concerned time-wise, as I will be able to ask for divorce exactly when the window for RoC starts, but I hear uncontested divorces don't take that long in NY state... or do they? would it take more than 2 months?

But my original question is: are there things that should NOT be in this agreement, regarding the future Removal of Conditions?

i.e. - who's initiating the separation or divorce, etc?; division of the few assets of the short marriage; CAUSE of the separation? stuff like that

I mean, I never did this before, I didn't look at the document yet 'cause I don't want to ruin my weekend, but, I am asking if someone has been through this and knows what SHOULD NOT be in the agreement.

Thanks.

[resilient 2]

One more thing is - he was the one who abandoned me (because of his family... but that's another story), so I don't see in which ground HE could file for divorce directly. I could do it, based on his abandonment, but I don't think it's a good idea for the foreigner to be the one applying for it... also, I don't really want to.

FYI:

What are the grounds for divorce?

"Grounds" are legally acceptable reasons for a divorce. In New York, there are divorces after separation, and fault-based divorces. There is no such thing is NY as "irreconcilable differences."

Divorce after separation - In a divorce after separation, you do not have to have one of the fault-based grounds, or reasons, for the divorce that are listed below. To file for divorce, you and your husband must either have a separation agreement or a court ordered-judicial separation. You also must live separate and apart for one year after the agreement or judicial order before you can be divorced. To understand what needs to be in a separation agreement in order for it to be considered a ground for divorce, it is best to consult a lawyer.

Fault-based – With a fault-based divorce, you do not have to be separated before filing for the divorce. In New York, you can file for a fault-based divorce for any of these reasons:

- Cruel and Inhuman Treatment – This includes physical, verbal or emotional abuse that endangers your physical or mental well being to the point that it is "unsafe or improper" for you to live with the abuser. The judge will require more than that you simply did not get along with one another. The judge will be looking for specific instances of cruelty that occurred in the last five years.

- Abandonment – To file for divorce based on abandonment, your spouse must have abandoned you for a period of one or more years. Specific examples of abandonment by your spouse include a physical move from the home or locking you out of the home. Also, if your spouse has refused to engage in sexual relations with you for at least one year, this can also qualify as abandonment and is known as "constructive abandonment."

- Three Consecutive Years Imprisonment - This is a ground for divorce if your spouse has been in jail for three or more years in a row beginning after your marriage. Once your spouse has been in jail for three years in a row, you can file for divorce:

while your spouse is still in jail

up to five years after s/he is released.

- Adultery – You must be able to show that your spouse committed adultery during the marriage. This is usually hard to prove in court, since you need evidence from a third party - someone besides you or your spouse.*

(yes, it's terrible to get a divorce in NY!) =(

Edited November 22, 2009 by resilient

[justashooter 430]

i'm sorry to hear you are having this difficulty. take the advise of the legal aide you can arrange.

i see no downside to signing a sep agreement if it is a required part of a quick divorce. the only concern you might have is in regard to any language that indicates reason for divorce that could be seen as unfavourable. if the reason for divorce is stated as incompatibility, it should not affect your 751 in a negative way.

be sure to get copies of all documents that might be useful in your future and store them in a safe place. you two might be on good terms now, but seperation and divorce have a way of changing peoples perspective within the first few months of seperation. some people do strange things once they begin to lose the bond they have while living together. they can enhance their perception of forgotten ills and use this enhanced perception as basis for actions they would not consider before seperating.

if your partner is divorcing you because of family pressure he must not have that strong of a character to begin with, so will be easily swayed by others in the coming months. watch your siz, and continue to be honorable in your communications with this guy. he might turn out to be the worst enemy you have, or the best friend you have. it's too early to tell.

[resilient 2]

thanks a lot justashooter.

exactly... I would like to know what kind of language COULD BE unfavourable in a separation agreement. I am not sure if one can state incompatibility, as this is not a ground in NY. From the link I posted, it seems that you don't need an actual reason for separating in the agreement, but I am not sure...

I am really concerned about what the immigration officer will look for in this agreement when I apply for the RoC Waiver. I did not see answers while researching here on VJ.

I do have all our joint docs and bills from this 1 year marriage - we would always put it in a organizer, and I have it with me. I also have all the papers we used on our AOS interview.

I said we are in "good terms" as we are not fighting, but we actually stopped talking. It still hurts when I see him or talk with him... so it's healthier to break the contact, I guess. I am the one who seems to be more tormented by the separation, and susceptible to do crazy things, hehe. He keeps it cool, at least on the outside. But he always been like this. Who knows what he is really feeling inside.

But of course, I won't do crazy things I am trying to be a decent person besides all the hurt.

He is quite younger than me. I understand why his family didn't want him married, although I don't agree with them; I also understand that he is just too young to stand by me in this whole situation. Also, being so young, he is not in a phase that he wants to have children, and I really want to and should while I still can. Because of his family pressure, he changed completely and showed a side of him I never seen before. Anyway, I see now that the relationship was destined not to work in the long run, but when you're in love, you are hopeful that all will work out because of the love you have for each other... so naive!

In the back of my mind I keep thinking that his control freak mom might do something to harm my chances of staying here, but, what can I do beside wait to see how this whole thing goes... hope all will end well.

i'm sorry to hear you are having this difficulty. take the advise of the legal aide you can arrange.

i see no downside to signing a sep agreement if it is a required part of a quick divorce. the only concern you might have is in regard to any language that indicates reason for divorce that could be seen as unfavourable. if the reason for divorce is stated as incompatibility, it should not affect your 751 in a negative way.

be sure to get copies of all documents that might be useful in your future and store them in a safe place. you two might be on good terms now, but seperation and divorce have a way of changing peoples perspective within the first few months of seperation. some people do strange things once they begin to lose the bond they have while living together. they can enhance their perception of forgotten ills and use this enhanced perception as basis for actions they would not consider before seperating.

if your partner is divorcing you because of family pressure he must not have that strong of a character to begin with, so will be easily swayed by others in the coming months. watch your siz, and continue to be honorable in your communications with this guy. he might turn out to be the worst enemy you have, or the best friend you have. it's too early to tell.