California divorce, domestic violence, and US immigration laws

CALIFORNIA Divorce – “No Fault.” California is a no-fault divorce state. A party filing for divorce does not need the consent of the other in order to file a Petition for Dissolution (Divorce) or, in some instances, to get a judgment of divorce.

What needs to happen is that the other party (your soon-to-be ex-spouse) needs to be served with process. In proceeding in an action for divorce, there are procedural requirements dictated by law that must be followed to ensure that the other party has notice of the action (that is, that s/he is being brought to court for an action of divorce) and that s/he is given time to respond. However, there is no requirement for the other party to respond. There is no requirement that s/he sign any document at all. All that needs to happen is that s/he is properly served with process according to the rules.

What if I do not have legal papers, and my spouse is abusive?  If safety is a concern, we urge people to seek help first, particularly if there are minor children who may also be at risk of abuse. For non-emergency calls, individuals may dial 2-1-1 to seek help finding resources for health, mental health, or temporary shelter.

Options available for victims of abuse: VAWA Self-Petition. The spouse or child of a U.S. citizen or a Lawful Permanent Resident, or the parent of a U.S. citizen, who is battered or subject to extreme cruelty may file a self-petition independently of the abusive U.S. citizen or Lawful Permanent Resident.

The spouse or child must demonstrate that he or she resided with the U.S. citizen or Lawful permanent spouse or parent; was battered or subject to extreme cruelty during the marriage (or, in the case of a spouse self-petitioner, the child was battered or subjected to extreme cruelty); the marriage was entered into in good faith; s/he is otherwise eligible for immediate relative or preference status; and has good moral character.

In certain cases, though an individual has not suffered any physical harm, abuse can still be argued depending on the circumstances, since “abuse” is not limited to physical harm. Each application will be reviewed and examined on a case-by-case basis, and given the whole picture, an individual might just be able to show that he or she is a battered spouse or has suffered extreme cruelty from their U.S. citizen or Lawful Permanent Resident husband. If so, a VAWA Self-Petition will enable her to adjust her status without having to rely on their spouse.

Deportability issues for green card holders with domestic violence conviction(s). A non-citizen, even if a Lawful Permanent Resident (green card holder) for ten years, is liable to be deportable if s/he commits or is convicted of certain crimes, even if it’s “just a misdemeanor.” A conviction for domestic violence can make a non-citizen deportable.

A criminal conviction’s negative impact on immigration status. The Record of Conviction (ROC) details an individual’s criminal history – his/her arrest, what s/he plead to, and the final judgment/sentence. The relief(s) available to an individual facing removal/deportation proceedings will depend largely on that individual’s record of conviction.

If you are a non-citizen, it is best to consult both with a criminal attorney and with an experienced criminal immigration attorney who handles deportation defense before pleading to anything in criminal court.

No two cases are exactly the same.  Consult with an experienced and competent family law and immigration attorney immediately, and more importantly prior to filing any applications with the USCIS, or prior to pleading to anything in any court, in order to explore their options and possible legal ramifications that they might be facing.  As always, be wary of online tools that offer immigration help or notarios who are not licensed to practice law.

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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and how their services may be retained at (619) 955-6277; (415) 495-8088; [email protected]. Visit for more information and other articles.

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