Atty. Kenneth Reyes

Parent’s right to change child’s residence to another state in custody cases

Friday, 06 November 2009 07:09 Atty. Kenneth Ursua Reyes

Parents that are going through divorce and legal separation sometimes have to make a decision to move out of state for various reasons. It may be because their family network is in another state. This decision often have a significant impact on the visitation of the other parent because it would be more difficult for the noncustodial parent to exercise his or her visitation rights in a frequent and continuing manner if the custodial parent moves to a different state hundreds or thousands of miles away from the non custodial parent.

The parent that has Custody of the child has a presumptive right to change the child’s residence unless the non custodial parent can show that the move would be a detriment to the child. In cases where there has not been any final custody order, the court has to make a custody determination using "the best interest" standard. Court will look at the factors and decide what is in the best interest of the child. Custody is usually given to the parent that is more likely to allow frequent and continuing contact between the child and the other parent. On the other hand if there has been a final Custody determination, then the non-custodial parent would have to show a "significant change in circumstances" to change the custody arrangement.

Management and control of community property after separation

Tuesday, 03 November 2009 21:55 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.

Management and control of community property after separation

Thursday, 29 October 2009 21:02 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.

K-1 visa: Fiance(e) visa to marry US citizen

Monday, 26 October 2009 20:00 Atty. Kenneth Ursua Reyes

IN previous editions of this article, the process of obtaining permanent residence through marriage was explored. Discussion of that procedure began with the supposition that the couple was married, and continued with the various steps to ultimately gain permanent residence. In many cases, however, a problem exists in even getting to the point at which a couple is married. Often, a foreign national is in his/her home country and, for one reason or another, the US citizen cannot travel to that country to marry him/her. A solution in such a scenario can be found with the K-1 Fiance(e) Visa.

A K-1 visa allows a foreign national to come to the United States to marry a United States citizen. The K-1 visa is valid for ninety (90) days after entry to the United States, during which time the marriage must take place. Once the foreign national is issued a K-1 visa, any of his/her unmarried children under the age of 21 may be issued K-1 visas. Upon arrival in the United States, the foreign national may immediately apply for permission to work. A two-step process is involved to obtain a K-1 visa.

K-1 VISA: Fiance(e) visa to marry US citizen

Thursday, 22 October 2009 20:55 Atty. Kenneth Ursua Reyes

In previous editions of this article, the process of obtaining permanent residence through marriage was explored. Discussion of that procedure began with the supposition that the couple was married, and continued with the various steps to ultimately gain permanent residence. In many cases, however, a problem exists in even getting to the point at which a couple is married. Often, a foreign national is in his/her home country and, for one reason or another, the US citizen cannot travel to that country to marry him/her. A solution in such a scenario can be found with the K-1 Fiance(e) Visa.

I Want out! Dissolution or legal separation?

Thursday, 15 October 2009 21:13 Atty. Kenneth Ursua Reyes

Whenthe marital relationship sours to the point where one or both spouses believe that the marriage cannot be salvaged, three remedies are available to terminate or alter the marital status: dissolution, nullity, and legal separation.

Under Family Code Sec. 2300, dissolution of marriage can be attained and the "single" status of spouses restored by 1) death of one of the spouses 2) a judgment of dissolution or 3) a judgment of nullity of marriage.

Apportionment of retirement benefits in divorce cases

Friday, 09 October 2009 00:55 Atty. Kenneth Ursua Reyes

One of the major assets a divorcing couple usually has, other than real estate property, are retirement benefits such as company pensions, 401k, and other deferred compensation. The problem in determining how much community property interest in the retirement benefit arises when the employee spouse worked at a particular employer longer than the period of the marriage. The question that arises is how do you apportion the community property interest? How much of it is the employee spouses’s separate property?

Retirement benefits in a divorce case are usually characterized as community property to the extent that the work done to earn them is performed between the date of marriage and the date of separation. Marriage of Brown. The community interest is not affected by whether or not the rights are vested or matured. To the extent that the work was performed before the date of marriage or after the date of separation, the benefits are the employee spouse’s separate property.

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.