Atty. Kenneth Reyes

Fraud waiver under INA section 237(A)(1)(H)

Sunday, 04 October 2009 23:31 Atty. Kenneth Ursua Reyes

IMMIGRANTS sometimes find themselves in immigration removal proceedings (deportation) because they have obtained their green cards through fraud and or misrepresentation. A common example would be married children of US citizens who lie to the US Embassy about their marital status by stating that they are single in order to obtain permanent residency. Another common example would be a married person who misrepresents her status as single to the US Embassy or USCIS in order to obtain a green through a petition from a new US Citizen spouse.

These immigrants could have their green cards revoked and later on placed in removal proceeding by the USCIS should the government find out about the fraud or misrepresentation. The USCIS (formerly INS) usually discovers the fraud when the immigrant tries to petition another relative or when the immigrant tries to apply for US Citizenship.

Obtaining permanent residence through marriage

Thursday, 24 September 2009 20:12 Atty. Kenneth Ursua Reyes

MARRIAGE for many persons is the culmination of one’s life. Getting married signifies the beginning of a new phase in life, both socially and economically. For those persons who lack permanent residency in the United States and have married a United States citizen, marriage also presents an opportunity to obtain permanent residency. However, although the opportunity to obtain permanent residency arises in such situations, one must be aware of and comply with procedures in existence to obtain such status. Due to concerns that persons were becoming married to United States citizens merely to obtain permanent residence status, a two-step procedure under the Immigration Marriage Fraud Amendments of 1986 (IMFA) was set up to ensure such status was given to those only in marriages that are bona-fide and not entered into simply for immigration purposes.

Modifying down child and spousal support in a recession

Wednesday, 23 September 2009 01:21 Atty. Kenneth Ursua Reyes

THE economic crisis has affected almost every aspect of our community from depressed real estate prices, lower 401k values, and employment. Many have lost their jobs as employers try to cut cost. Those that are fortunate to keep their jobs usually have bonuses and overtime reduced. The bottom line is there is less money to go around.

To top all this off, many of us have existing child and spousal support obligations that were issued when the economy was growing and when you were generating more income. If your income has gone down substantially from the time that the child or spousal support determination, you may be able to file a modification of your support obligation. Losing a job or having less income constitutes a material change of circumstances that would allow the court to modify down your support obligations.

Modifying down child and spousal support in a recession

Thursday, 17 September 2009 21:32 Atty. Kenneth Ursua Reyes

The economic crisis has affected almost every aspect of our community from depressed real estate prices, lower 401k values, and employment. Many have lost their jobs as employers try to cut cost. Those that are fortunate to keep their jobs usually have bonuses and overtime reduced. The bottom line is there is less money to go around.

What to do with conditional green card status in troubled marriages

Thursday, 10 September 2009 20:18 Atty. Kenneth Ursua Reyes

Marriage for many persons is the culmination of one’s life. Getting married signifies the beginning of a new phase in life, both socially and economically. For those persons who lack permanent residency in the United States and have married a United States citizen, marriage also presents an opportunity to obtain permanent residency. However, although the opportunity to obtain permanent residency arises in such situations, one must be aware of and comply with procedures in existence to obtain such status. Due to concerns that persons were becoming married to United States citizens merely to obtain permanent residence status, a two-step procedure under the Immigration Marriage Fraud Amendments of 1986 (IMFA) was set up to ensure such status was given to those only in marriages that are bona-fide and not entered into simply for immigration purposes.

Duty to disclose community property in divorce

Thursday, 03 September 2009 23:58 Atty. Kenneth Ursua Reyes

There is a natural tendency among divorcing parties to hide their assets from their spouse. This is a common problem that I have observed from practicing law for many years. A common question I hear from clients is "my spouse doesn’t know I have an account in this bank, do I have to let him/ her know of this account?"

The Court’s power to make divorce orders to a non-Calif. resident

Thursday, 27 August 2009 22:08 Atty. Kenneth Ursua Reyes

This is a common question among people contemplating divorce in California when the other spouse does not live in the state. The California Courts has the power to grant a divorce, annulment, or legal separation if either party is domiciled in the state. Domicile is where a person lives and intends to remain. However, there is an additional requirement if you are seeking a divorce rather than annulment or legal separation. To obtain a divorce in California, one of the parties must have been a resident of California for six months immediately before the filing of the divorce petition. Responding spouses can use this requirement as a defense if the Petitioning spouse does not meet such requirement when the petitioner filed for divorce. In addition, divorce petitions may be filed in the county where at least one spouse resided for 3 months immediately prior to filing the petition.

Knowing your rights to reimbursements during divorcetion

Sunday, 23 August 2009 18:13 Atty. Kenneth Ursua Reyes

DIVORCE can be a bit complicated specially if there are community assets and debts involved. Generally, accumulations and earning after the date of separation is each spouse’s separate property. What happens when you use separate funds to pay for community debts after the date of separation such as when one spouse continues to pay the mortgage to the family residence after separation? Does that spouse get credit for all those mortgage payment?

Normally when a spouse uses separate property to pay for community debt prior to the date of separation, there is a presumption that it is a gift to the community unless you can trace the separate property contribution and seek reimbursement under family code §2640. However, there is no presumption of a gift when separate funds are used to pay community debts after the date of separation. That is why the date of separation is very important and commonly litigated in highly contested divorce cases due to the difference in controlling presumptions. Instead, the trial court has discretion to order reimbursement of any separate property used to pay community debts after the date of separation under family code §2626. The reimbursement is commonly called Epstein credits after the case Marriage of Epstein. However in deciding whether to allow reimbursable credits, the Court has to consider the Epstein guidelines. Reimbursement for a particular debt is inappropriate where:

a) The parties agreed payment would not be reimbursed.
b) Payment was truly intended as a gift, even though made after separation.
c) Payment was made on account of a debt for the acquisition or preservation of an asset the payor was using, and the amount paid was not substantially in excess of the value of the use.
d) The payments on account of preexisting community obligations constitute a discharge of the payor’s support duties.

How about the situation where one spouse has exclusive use of the community asset between the date of separation and the date the community no longer has an interest in the asset such as use of a car? The Spouse with the exclusive use of the community asset can be charged the reasonable use of that property under the Marriage of Watts. This is called Watts charge. So for example if the wife has exclusive use of the car, the husband may ask that the community be reimbursed by the wife for the value of the use of the car between separation and trial date or settlement date. The same thing can be applied when one spouse alone is staying at the family residence while the other spouse is paying for the house. The rules governing reimbursements can be confusing to lay people. It is best to obtain the representation of competent counsel.

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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. Law Offices of Kenneth Reyes, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@aol.com. Website kenreyeslaw.com

( www.asianjournal.com )

( Published on August 22, 2009 in Asian Journal Los Angeles p. C4 )

Management and control of community property after separation

Sunday, 16 August 2009 18:41 Atty. Kenneth Ursua Reyes

THE duties owed between spouses in the management and control of community property are the same with regard to those in a fiduciary relationship. The marital entity is one with the greatest degree of confidence. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and a duty to refrain from taking any unfair advantage of the other. Fam. Code Sec. 721(b) This fiduciary duty continues after separation until the date of distribution of community property. A problem frequently arises when after separation but before dissolution, one spouse breaches the fiduciary duty by mismanaging or transferring community property in prejudice of the other spouse’s rights. The aggrieved party has certain remedies available in this situation.

Family Code Sec. 1101 provides a statutory basis for a breach of fiduciary duty claim against a spouse. An actionable claim against one’s spouse lies where there is a breach of fiduciary duty which results in "impairment to the claimant spouse’s present undivided one-half interest in the community estate." Fam. Code Sec. 1101(a). An impairment that falls under the foregoing code may be the result of a single transaction or a pattern or series of transactions which have caused a detrimental impact to the claimant spouse’s undivided one-half interest in the community estate.