Spouse Didn't Divorce Before We Married
My question involves a marriage in the state of: California.
I have been married to my wife for nearly 10 years. We were married in California and we both live in California. This is my first marriage. My wife told me she had been married and divorced twice (both in California). I have seen the marriage certificates and divorce paperwork from the two previous marriages. No problems there. Recently, my wife has been pushing me to get married again on our tenth wedding anniversary. Concurrently she received a mailing from the local superior court. I was shocked to find out that she had just filed for, and received a divorce from a husband I had never heard of (not one of the two I knew about). Upon some stern questioning, she confessed that she has indeed been married since 1993 to a man who is living in the Philippines. This was her first marriage...the two I knew of were actually marriages two and three, making me number four. The long and the short of it is this...she was married in her native Philippines before ever coming to the US. The Philippines does not recognize divorce and she has told me she only recently filed for a divorce from husband number one. Her reason for filing for the divorce now, according to her, has importance in a immigration petition she is seeking for her eldest son and his family. This son was not a result of any of the marriages discussed above (apparently a birth out of wedlock).
Additional background: My wife is a US citizen and obtained her citizenship through our marriage. I married her for love, and still love her. I have raised her daughter (from one of the two known marriages) as my own. Her father is deceased. Also, upon review of the divorce paperwork she received in the mail recently (the clue that opened all this up for me) my wife made some mis-statements concerning her tax filing status and persons she lives with - tax status Single; living with just her daughter. No clue as to me and our present marriage.
So the question is...Am I really married? My wife seems to feel that we are not, thus the push to re-marry.
Re: Divorce - I'm I Really Married After All
No you are not married. Great for you as she is not entitled to alimony etc.. Further, she committed fraud to obtain her citizenship and after you notify them, they will likely deport her, if she does not have jail time for bigamy and immigration fraud to serve. You also need to refile your taxes for the past ten years it appears, to avoid this coming back on you. There may be other services illegally received that might need to be refunded also.
Re: Divorce - I'm I Really Married After All
Thanks for the quick response. Wow! I was hoping for an outcome less drastic than handcuffs. And the taxes are an area I never considered. Another area might be the health insurance coverage we've had for nearly 10 years. Lots of things are linked to a "married" status.
Re: Divorce - I'm I Really Married After All
Yep, you may love her but is it worth complicity in immigration fraud, insurance fraud and tax fraud to protect her deceit?
Quote:
Quoting
at2470
Thanks for the quick response. Wow! I was hoping for an outcome less drastic than handcuffs. And the taxes are an area I never considered. Another area might be the health insurance coverage we've had for nearly 10 years. Lots of things are linked to a "married" status.
Re: Divorce - I'm I Really Married After All
Quote:
Quoting
Disagreeable
Yep, you may love her but is it worth complicity in immigration fraud, insurance fraud and tax fraud to protect her deceit?
Please note that the tax advice you received is really, really, really BAD advice...and some of the rest of it may be really bad advice as well. Your marriage also may not be completely void, it may be voidable based on the bigamy.
I would suggest that rather than take anything that Disagreeable stated as accurate, that you consult with a local tax professional, an immigration attorney, and a family law attorney. You don't necessarily need to hire any of them at this point, you simply need to be gathering information from the proper professionals.
I am a tax professional and I am going to explain (so that you can understand where I am coming from) why Disagreeable's advice was so bad.
The federal tax code does not permit a joint tax return to be amended to separate or single returns for a calendar year in question, past April 15th of the year the tax return was due. Therefore any attempt to do what Disagreeable suggested would simply cause such amended returns to be rejected. It would take some expensive and time consuming action to even get the IRS to accept such amendments. The IRS would also have no interest in anything more than three years old unless they considered it to be fraud, and in your case, they would be unlikely to consider it as such. You certainly had no idea that your marriage was questionable, and your wife may not have fully understood that either, since she married and divorced two other people between her first marriage and you. Many people do not understand that marriages performed in another country are valid marriages in the US. Its unlikely your wife would have ever realized their was a problem had the immigration issues with her son had not arisen.
Its also very possible that any amended tax returns would result in additional refunds due to you and your wife, rather than money due to the feds, and that is a further reason why the IRS would possibly be completely disinterested in cooperating with amendments that are past the statutory deadline. If you and your wife did not file joint returns (and there is some hint in your original post that you did not) then there is no need for you to amend anything, in any way, shape or form.
Don't automatically assume that you need to throw your wife under the bus to avoid having legal problems yourself just because someone on an internet message forum (who clearly does not know what they are talking about) is telling you to do so. Get professional advise.
Re: Spouse Didn't Divorce Before We Married
Here are the precise laws.
Quote:
FAMILY.CODE
SECTION 2210-2212
2210. A marriage is voidable and may be adjudged a nullity if any
of the following conditions existed at the time of the marriage:
(a) The party who commences the proceeding or on whose behalf the
proceeding is commenced was without the capability of consenting to
the marriage as provided in Section 301 or 302, unless, after
attaining the age of consent, the party for any time freely cohabited
with the other as husband and wife.
(b) The husband or wife of either party was living and the
marriage with that husband or wife was then in force and that husband
or wife (1) was absent and not known to the party commencing the
proceeding to be living for a period of five successive years
immediately preceding the subsequent marriage for which the judgment
of nullity is sought or (2) was generally reputed or believed by the
party commencing the proceeding to be dead at the time the subsequent
marriage was contracted.
(c) Either party was of unsound mind, unless the party of unsound
mind, after coming to reason, freely cohabited with the other as
husband and wife.
(d) The consent of either party was obtained by fraud, unless the
party whose consent was obtained by fraud afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with
the other as husband or wife.
(e) The consent of either party was obtained by force, unless the
party whose consent was obtained by force afterwards freely cohabited
with the other as husband or wife.
(f) Either party was, at the time of marriage, physically
incapable of entering into the marriage state, and that incapacity
continues, and appears to be incurable.
2211. A proceeding to obtain a judgment of nullity of marriage, for
causes set forth in Section 2210, must be commenced within the
periods and by the parties, as follows:
(a) For causes mentioned in subdivision (a) of Section 2210, by
any of the following:
(1) The party to the marriage who was married under the age of
legal consent, within four years after arriving at the age of
consent.
(2) A parent, guardian, conservator, or other person having charge
of the underaged male or female, at any time before the married
minor has arrived at the age of legal consent.
(b) For causes mentioned in subdivision (b) of Section 2210, by
either of the following:
(1) Either party during the life of the other.
(2) The former husband or wife.
(c) For causes mentioned in subdivision (c) of Section 2210, by
the party injured, or by a relative or conservator of the party of
unsound mind, at any time before the death of either party.
(d) For causes mentioned in subdivision (d) of Section 2210, by
the party whose consent was obtained by fraud, within four years
after the discovery of the facts constituting the fraud.
(e) For causes mentioned in subdivision (e) of Section 2210, by
the party whose consent was obtained by force, within four years
after the marriage.
(f) For causes mentioned in subdivision (f) of Section 2210, by
the injured party, within four years after the marriage.
2212. (a) The effect of a judgment of nullity of marriage is to
restore the parties to the status of unmarried persons.
(b) A judgment of nullity of marriage is conclusive only as to the
parties to the proceeding and those claiming under them.
Re: Divorce - I'm I Really Married After All
Thanks for that! My head is spinning. Your assessment as to the possible tax fall out is encouraging. And, I would also agree that consultations with a family law attorney and someone with an immigration background are in order. In fact I have a few calls out right now. The last thing I want is to through my wife under any bus...my plan to the find an attorney (are a set of them) to fix this problem. From a tax view point, we have filed joint (married) returns each year of our marriage.
A forum like this helps with a "reality check" with regard to is there an issue at all.
Thank you for your help!
Re: Spouse Didn't Divorce Before We Married
However, she did not have the legal capacity to marry by law. If she had not known that, she would not have attempted to get remarried. The immigration fraud can possibly trigger her tax fraud. What llworking failed to mention is even though there is statutes of limitation on tax fraud. It applies "in cases where a false return is filed coupled with an affirmative act of evasion after the filing date, the statute of limitations commences on the date the last affirmative act took place or the statutory due date, whichever is later". Knowing your marriage was invalid could be held to trigger the statute of limitations as of the time you became aware of her fraudulent affirmations.
http://www.justice.gov/tax/readingro...ctm/07ctax.htm
Quote:
FAMILY.CODE
SECTION 300-310
300. (a) Marriage is a personal relation arising out of a civil
contract between a man and a woman, to which the consent of the
parties capable of making that contract is necessary. Consent alone
does not constitute marriage. Consent must be followed by the
issuance of a license and solemnization as authorized by this
division, except as provided by Section 425 and Part 4 (commencing
with Section 500).
(b) For purposes of this part, the document issued by the county
clerk is a marriage license until it is registered with the county
recorder, at which time the license becomes a marriage certificate.
Re: Spouse Didn't Divorce Before We Married
I would be VERY careful of raising immigration fraud as an issue.
Because it's quite possible the OP could be deemed equally responsible for the fraud.
Re: Spouse Didn't Divorce Before We Married
Disagreeable, are you pointing to 2210 (a) and saying she was not lawfully able to consent due to the first, still in force, marriage? Or are you looking at 2210 (d) the fraud language?
Proving the fraud would be easy inasmuch as she clearly knew she was married to someone else when she married me. This is shown by the recent filing for divorce some 20 years later. In that same filing she also told the court she filed Single on her taxes and was only living with her daughter. Both are false. Setting aside the possible tax consequences, I believe these two mis-statements speak to intent to continue a deception.