Divorce question

[jgoodman 8]

After reading all of these posts, I am confused as to the best option for you.

If you try for an annulment, wouldn't the Philippine court question the reason since you already have a presumption of death? This seems like it would make the convoluted anulment process even more time consuming and expensive.

If you go forward with the presumption death, wouldn't the NVC or DOS want to see a death certificate since this is a US citizen? It is hard to believe that they would accept a presumption of death certificate from a foreign country as proof an American citizen who resides in the US is dead. As far as the US govt potentially not knowing the marriage in the Phils took place, they will see it on the cenomar.

Since the marriage took place in the Philippines and since your fiance still resides there as a citizen, I am not sure a divorce decree from the US would nullify the marriage.

Even if they did accept that, would they allow you to divorce someone who is dead?

Maybe I am missing something...

[Caryh 5,206]

After reading all of these posts, I am confused as to the best option for you.

If you try for an annulment, wouldn't the Philippine court question the reason since you already have a presumption of death? This seems like it would make the convoluted anulment process even more time consuming and expensive.

You may have a point on the annulment. I don't totally understand the Philippine Family Code in depth enough to know how the presumption of death decree would affect an annulment.

If you go forward with the presumption death, wouldn't the NVC or DOS want to see a death certificate since this is a US citizen? It is hard to believe that they would accept a presumption of death certificate from a foreign country as proof an American citizen who resides in the US is dead. As far as the US govt potentially not knowing the marriage in the Phils took place, they will see it on the cenomar.

The USA also has ways to get a presumption of death of a missing spouse. This is nothing new to American law. There is even a recent case in Ohio where a man declared dead, after he ran away from his wife, cannot get his SS benefits because he's been declared dead. And the law in that state does not allow him to be declared alive again. So a walking breathing human is legally dead. In any case the court decree of presumption of death is as good as a death certificate in the USA. Which is why I actually don't believe the embassy will not accept this method of termination of marriage. Its a legal method in both the USA and the Philippines to terminate a marriage.

Since the marriage took place in the Philippines and since your fiance still resides there as a citizen, I am not sure a divorce decree from the US would nullify the marriage.

Location of marriage does not control location of dissolution of a marriage. If it did, USC would need to return to the county or at least the state they were married in to divorce, and we know that isn't true. Philippine law is very clear on when and how a foreign granted divorce can be recognized as terminating the marriage of a Philippine citizen under their laws.

Even if they did accept that, would they allow you to divorce someone who is dead?

Maybe I am missing something...

In this case, the person who has been declared presumptively dead in the Philippines, would be the one filing for divorce in the USA. No one has declared him dead in the USA.

[Skeeter 1]

Where did you run into the annotated CEMAR not being acceptably to the embassy now information? I know this used to work just fine, even knew some people who got K-1's with that document. And yes, it certainly sounds like you have the correct document, and by the laws of the Philippines, she is free to marry. Technically that should meet the standards required by the embassy, as even in the USA presumptive death decree frees someone to marry also. To speed things up, you could marry her there and go the CR-1 route to. Then the CEMAR would show her married to you.

Well, Caryh, that answer is quite simple. She was turned away AT the embassy by the consular at the end of her interview. She simply said, you "HAVE" to provide a death certificate because we don't believe presumptive death anymore. Too many Filipinas have found it too very easy to obtain a presumptive death decree and so now she gave us the almost impossible task of getting a death certificate. This is why we have to try to contact him so desperately. HE will be our fastest route right now if he will do the divorce thing.

[Skeeter 1]

After reading all of these posts, I am confused as to the best option for you.

If you try for an annulment, wouldn't the Philippine court question the reason since you already have a presumption of death? This seems like it would make the convoluted anulment process even more time consuming and expensive.

You may have a point on the annulment. I don't totally understand the Philippine Family Code in depth enough to know how the presumption of death decree would affect an annulment.

If you go forward with the presumption death, wouldn't the NVC or DOS want to see a death certificate since this is a US citizen? It is hard to believe that they would accept a presumption of death certificate from a foreign country as proof an American citizen who resides in the US is dead. As far as the US govt potentially not knowing the marriage in the Phils took place, they will see it on the cenomar.

The USA also has ways to get a presumption of death of a missing spouse. This is nothing new to American law. There is even a recent case in Ohio where a man declared dead, after he ran away from his wife, cannot get his SS benefits because he's been declared dead. And the law in that state does not allow him to be declared alive again. So a walking breathing human is legally dead. In any case the court decree of presumption of death is as good as a death certificate in the USA. Which is why I actually don't believe the embassy will not accept this method of termination of marriage. Its a legal method in both the USA and the Philippines to terminate a marriage.

Since the marriage took place in the Philippines and since your fiance still resides there as a citizen, I am not sure a divorce decree from the US would nullify the marriage.

Location of marriage does not control location of dissolution of a marriage. If it did, USC would need to return to the county or at least the state they were married in to divorce, and we know that isn't true. Philippine law is very clear on when and how a foreign granted divorce can be recognized as terminating the marriage of a Philippine citizen under their laws.

Even if they did accept that, would they allow you to divorce someone who is dead?

Maybe I am missing something...

In this case, the person who has been declared presumptively dead in the Philippines, would be the one filing for divorce in the USA. No one has declared him dead in the USA.

Well, I think the key here is the fact that he hasn't actually been "declared" dead. He is merely, and for all intents and purposes of freeing the woman from her marital bonds, been declared "Presumptively Dead". Only a presumption based on his absense. A declaration of death would be the actual death certificate, of which there isn't one. Or, the "presumption" would turn out to be a wrong presumption, I.E., mistakes can be made even by courts, then in fact a divorce by the newly arising original husband would tend to be valid if he would do it. So the magic words here are "presume" and "declare". In this instance we have "presume".

[Skeeter 1]

Well, Caryh, that answer is quite simple. She was turned away AT the embassy by the consular at the end of her interview. She simply said, you "HAVE" to provide a death certificate because we don't believe presumptive death anymore. Too many Filipinas have found it too very easy to obtain a presumptive death decree and so now she gave us the almost impossible task of getting a death certificate. This is why we have to try to contact him so desperately. HE will be our fastest route right now if he will do the divorce thing.

You're right, I could actually marry her there and we're contemplating that avenue as well. But I'm also thinking that afterwards when we go through the visa process again they will still see that presumption of death with no death certificate and then try to tell us that we are not legally married or some such thing. See? Now they've got me where I'm not even thinking logically cuz I know I just made a dumb statement.

Mike

[Hank_ 9,174]

You're right, I could actually marry her there and we're contemplating that avenue as well. But I'm also thinking that afterwards when we go through the visa process again they will still see that presumption of death with no death certificate and then try to tell us that we are not legally married or some such thing. See? Now they've got me where I'm not even thinking logically cuz I know I just made a dumb statement.

Mike

Waters are already clouded and I am sure the CO made notes in the file, so I agree with you, best to get things cleared up with the "EX"

[Skeeter 1]

You're right, I could actually marry her there and we're contemplating that avenue as well. But I'm also thinking that afterwards when we go through the visa process again they will still see that presumption of death with no death certificate and then try to tell us that we are not legally married or some such thing. See? Now they've got me where I'm not even thinking logically cuz I know I just made a dumb statement.

Mike

To help some of you out and to fill you in better and eliminate some of the wondering, I'm going to post a pic of both documents here and it really doesn't matter whether or not names are scratched off so as not to be seen. That can't matter. So, here are the updated certificate of marriage as well as the email from the consulate after the embassy interview as well as the court order. I think these will clear up a lot of everyone's questions as to whether or not this or that. And we'll go from there.

Mike

[jgoodman 8]

After reading all of these posts, I am confused as to the best option for you.

If you try for an annulment, wouldn't the Philippine court question the reason since you already have a presumption of death? This seems like it would make the convoluted anulment process even more time consuming and expensive.

You may have a point on the annulment. I don't totally understand the Philippine Family Code in depth enough to know how the presumption of death decree would affect an annulment.

If you go forward with the presumption death, wouldn't the NVC or DOS want to see a death certificate since this is a US citizen? It is hard to believe that they would accept a presumption of death certificate from a foreign country as proof an American citizen who resides in the US is dead. As far as the US govt potentially not knowing the marriage in the Phils took place, they will see it on the cenomar.

The USA also has ways to get a presumption of death of a missing spouse. This is nothing new to American law. There is even a recent case in Ohio where a man declared dead, after he ran away from his wife, cannot get his SS benefits because he's been declared dead. And the law in that state does not allow him to be declared alive again. So a walking breathing human is legally dead. In any case the court decree of presumption of death is as good as a death certificate in the USA. Which is why I actually don't believe the embassy will not accept this method of termination of marriage. Its a legal method in both the USA and the Philippines to terminate a marriage.

I still don't get this part. An American citizen who resides in this country, can be declared dead by presumption of death from a country he never lived in? So just because someone does not answer mail or respond to e-mails, our governmant will considder that cause for a presumption of death?

I could understand if the American actually lived in the Phils and then went missing. Since the beneficiary is from the Phils and petitions from there are given extra scrutiny, seems like the NVC would see this as a red flag and do a simple search on his ssn to see if he is still alive and where he resides. I don't think this would ever get to the embassy.

Since the embassy is requiring a death certificate I guess this is a moot point.

Since the marriage took place in the Philippines and since your fiance still resides there as a citizen, I am not sure a divorce decree from the US would nullify the marriage.

Location of marriage does not control location of dissolution of a marriage. If it did, USC would need to return to the county or at least the state they were married in to divorce, and we know that isn't true. Philippine law is very clear on when and how a foreign granted divorce can be recognized as terminating the marriage of a Philippine citizen under their laws.

You are right about the US citizen example. We allow divorce here so it makes perfect sense to accept a divorce that occurs in a different country. The difference is that in the Phils with few exceptions, there is no divorce. I would search here on VJ for the rules required for divorce in the Phils.

Even if they did accept that, would they allow you to divorce someone who is dead?

Maybe I am missing something...

In this case, the person who has been declared presumptively dead in the Philippines, would be the one filing for divorce in the USA. No one has declared him dead in the USA.

[Caryh 5,206]

Well, Caryh, that answer is quite simple. She was turned away AT the embassy by the consular at the end of her interview. She simply said, you "HAVE" to provide a death certificate because we don't believe presumptive death anymore. Too many Filipinas have found it too very easy to obtain a presumptive death decree and so now she gave us the almost impossible task of getting a death certificate. This is why we have to try to contact him so desperately. HE will be our fastest route right now if he will do the divorce thing.

Wow, that does suck. I guess I can see their point though. Getting the presumption of death is a quicker way to get legal single status than going for an annulment, and often easy to get even when they know the spouse is probably alive somewhere. I guess they prefer the Philippine method of paying experts to lie to the courts in order to get an annulment. Although I can understand them being stricter on this, when the spouse in a USC. Still by the laws of the Philippines, she is now free to marry, regardless of how they dance around not allowing their citizens to divorce, while still letting them dissolve their marriages.

You're right, I could actually marry her there and we're contemplating that avenue as well. But I'm also thinking that afterwards when we go through the visa process again they will still see that presumption of death with no death certificate and then try to tell us that we are not legally married or some such thing. See? Now they've got me where I'm not even thinking logically cuz I know I just made a dumb statement.

Mike

I totally get how this is jumping in logical circles.

[Caryh 5,206]

I still don't get this part. An American citizen who resides in this country, can be declared dead by presumption of death from a country he never lived in? So just because someone does not answer mail or respond to e-mails, our governmant will considder that cause for a presumption of death?

I could understand if the American actually lived in the Phils and then went missing. Since the beneficiary is from the Phils and petitions from there are given extra scrutiny, seems like the NVC would see this as a red flag and do a simple search on his ssn to see if he is still alive and where he resides. I don't think this would ever get to the embassy.

Since the embassy is requiring a death certificate I guess this is a moot point.

You are right about the US citizen example. We allow divorce here so it makes perfect sense to accept a divorce that occurs in a different country. The difference is that in the Phils with few exceptions, there is no divorce. I would search here on VJ for the rules required for divorce in the Phils.

If you read the court decree that Mike posted, you'll see it makes the presumption he's dead, but acknowledges he may one day show up. Still it declares the marriage dissolved, and frees her to marry again even if he once again shows up.

As I've mentioned, the USA has these same type of laws to declare someone as presumptively dead. The law as written requires that the "Petitioner and Beneficiary are legally able to marry" not what methods can be used to dissolve a previous marriage. Both parties in this case are legally able to marry in both the Philippines and the USA. The rules being applied here were created by the embassy, and could most likely be overturned with a legal challenge. But that would probably take even longer and cost more than the annulment. The fact that the embassy no longer likes the method chosen to terminate the marriage, does not mean it is not a legal method in both the USA and the Philippines.

http://www.straightdope.com/columns/read/2253/what-happens-when-someone-legally-dead-shows-up-alive

Edgar Sentell, a retired senior vice-president and general counsel of Southern Farm Bureau Life Insurance Company, explains that the presumption of death after the unexplained absence of seven years developed after 1800. Before that, if there was no evidence to the contrary, an absent person was presumed to be living even though he might have been ninety or one hundred years old at the time a question arose. Today, an absent person is presumed to have died if:

1. he has been missing from his home or usual residence for a period of seven years;
2. such absence has been continuous and without explanation;
3. persons most likely to hear from him have heard nothing; and
4. he cannot be located by diligent search and inquiry.

According to Sentell, almost all the states recognize the presumption, either by statute or judicial recognition of the common law rule. Some states have amended their statutes to lower the seven-year period to five consecutive years, and a few have reduced the period even more--Minnesota and Georgia cut theirs to four.

I've actually read the Philippine Family Code numerous times, so I'm fairly aware of the methods to terminate marriages in the Philippines, and the process of getting a foreign granted divorce recognised. Visa Journey has so many opinions that are based on hearsay which ignore the Family Code, that you're more likely to get the wrong information here on what's legal or not in the Philippines unless you know the right people to listen to. The Philippine Family code is actually quite an eye opening read on how much detail they go into in order to control names, family relationships, rights of each spouse, responsibilities of each spouse, marriage, children, legitimate and illegitimate kids, etc they literally spell everything out.

[Speech33 0]

I see now why the CO ask your gf a Death Certificate.The application of Presumptive of death is so timing...red flags to CO....If she file for presumptive of death before she meet you or at the later part ,she will stand a chance...You are right your best chance is to find her husband...If you undergo annulment i don't think so the process will be done before 221g will expire(you have one year for that).If things would really not work,annulment is the other way around.You can still do annulment ,no problem with that even you have a presumptive of death paper.I already ask a lawyer about that...Cost a fortune but clear all things out...Even if you marry her on Phil which is she is free to marry you,you will have a problem during your CR-1 route,still the CO will question your gf about the proof of death of her x-husband by then.Same limbo...Remember USEM keep their records,one tick tock on the computer and her previous records shows...

Jgoodman might be right,maybe CO finds out already her husband is still alive and kicking in the US...A little of tick tock on their database and their it shows....

This is all the her lawyer's fault...should off given her a right advice...hmmmmmppppppp...

[icebryker 21]

Any updates Skeet? Was your fiance able to call her ex?

[Skeeter 1]

Any updates Skeet? Was your fiance able to call her ex?

No, Icebryker. Nothing yet. She called the two phone numbers that I provided her with that Verizon said was an active land line but they were full of it cuz when she called both numbers the recording said that the phone was not a working phone number.

However, I did manage to locate a niece of his. A very prominant woman in Las Vegas who he had mentioned to my fiance in some discussions they used to have and how he said that she was a strong influence on him and how he would listen to her as if she were HIS elder. So, I got her phone number and gave it to the fiance. She was actually an easy find. She will try to call that number later in the day today. I told her it might be best to make something like an 8pm call. Long before bed but after dinner. That sort of thing. She will introduce herself and attempt to tell this woman what's what and how come. I wouldn't doubt that she doesn't even know that her uncle was married to a foreign woman. I'd bet money on it. We're hoping that she will be an understanding person and offer us some help after we tell her the story. We're hoping that if she indeed has such an influence on him that maybe she can convince him to do the right thing.

So that's what I have for now. Pins and needles until later.

Mike

[icebryker 21]

Atleast that's something Mike. Let's hope that the niece could influence the uncle or maybe give her (your fiance) his (the uncle) number.

[Caryh 5,206]

No, Icebryker. Nothing yet. She called the two phone numbers that I provided her with that Verizon said was an active land line but they were full of it cuz when she called both numbers the recording said that the phone was not a working phone number.

However, I did manage to locate a niece of his. A very prominant woman in Las Vegas who he had mentioned to my fiance in some discussions they used to have and how he said that she was a strong influence on him and how he would listen to her as if she were HIS elder. So, I got her phone number and gave it to the fiance. She was actually an easy find. She will try to call that number later in the day today. I told her it might be best to make something like an 8pm call. Long before bed but after dinner. That sort of thing. She will introduce herself and attempt to tell this woman what's what and how come. I wouldn't doubt that she doesn't even know that her uncle was married to a foreign woman. I'd bet money on it. We're hoping that she will be an understanding person and offer us some help after we tell her the story. We're hoping that if she indeed has such an influence on him that maybe she can convince him to do the right thing.

So that's what I have for now. Pins and needles until later.

Mike

Good luck with that. Is there a reason you haven't attempted to call? I would think a USA call would be easier to make, and certainly cheaper. Or is it just trying to keep a third party out of it as much as possible?