Legal Matters - 2016


Expanding Your Family: Considerations Prior to Finalizing a Marriage

By Ketan P. Soni

As the first generation of Indians now experiences their children growing up, succeeding in life and thinking about the future, new challenges have come to light that any parent and family should take into account.

Any Indian marriage, large or small, requires months of planning festivities, invitations, various ceremonies and ensuring all event locations are reserved. Parents are appropriately meticulous in these details to ensure friends and family experience a joyous occasion. My suggestion is that families also consider how to best protect both sides of the new family from unpleasant consequences that may occur, such as the ones outlined below.

As a family lawyer for 16 years, I have witnessed an increasing number of hiccups early on in some family-planned marriages. These hiccups have sometimes been resolved by parents and elders stepping in to smooth over the situation, which is the traditional way of doing things. Other times, however, there may have been misconceptions or ulterior motives by one of the spouses that have led to disastrous and costly altercations with long-lasting monetary implications for both sides.

The most common problems or motives revolve around these basic issues:

• Immigration Status;
• Money in the form of jewelry given during the marriage ceremony;
• Discontent by one or both of the spouses, resulting in legal action;
• Threats of actions in India.

Immigration Status

There is no denying the implications of immigration on a marriage. The majority of Indian marriages are conducted for the proper purpose in advancing both families to a better state for their children. However, with the increasing difficulty to immigrate to the United States, some spouses see and have researched opportunities for entering the United States for the sole purpose of Visa status, and not for a long-term marriage.

While these sinister intentions have existed in the past to some degree, immigration laws have prompted spouses to take more drastic measures.

The examples I have seen are efforts to obtain a U Visa: https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status. In our North Carolina community, spouses who have lived in the United States as little as three weeks have somehow (allegedly) fabricated situations that result in a Domestic Violence hearing. These Domestic Violence petitions are heard ex parte, meaning without the other spouse being aware. In extreme examples I have seen, the spouse with a Green Card has been locked up in jail for false allegations, which allowed the foreign spouse to return to the residence, take the majority of items of property, including gold, and flee to a different state. Once in a different state, the foreign spouse files another action for Domestic Violence in the new state.

The results are the U.S. spouse now has to fight a Domestic Violence action, a criminal action in North Carolina, and another domestic violence action in a different state. Even if the foreign spouse's allegations are false, the time (possibly one year to go to court), the cost (tens of thousands of dollars), and damage to reputation (immeasurable) are done. As further insult to injury, the foreign spouse will apply for a U Visa and may be able to retain status in the United States under these provisions.

The best defense is to thoroughly understand both spouses' intentions and perhaps examine their past and their family prior to entering a relationship. If problems arise quickly after a spouse comes to the United States, seek to properly document any suspicious behavior in order to protect your family.

Money/Jewelry given during the marriage ceremony

Unfortunately for some spouses and families, everything comes down to money. Another common scenario in North Carolina is for a spouse to come to the United States. Again, after a short marriage (three or less years), someone decides things are not working. At that point, however, gold becomes a major issue. One spouse has either a) taken the gifted gold, never to be seen again; b) overvalued the gold by tens of thousands of dollars; or c) claimed that the other spouse has kept the gold with parents to the exclusion of all others, even when such gold never existed. In one matter, a spouse claimed the jewelry was worth $5,000, while the other claimed an exorbitant $70,000.

North Carolina does not necessarily view gold and dowry the same way as India. In fact, gold received from the other spouse's family may not “separate" property, depending on the judge and circumstances. When gold has disappeared or been overvalued, the spouse claiming such allegations will often “fight to the finish" unless some monetary concessions are made.

A simple contract or document which acknowledges the quantity, value, classification and disposition of all jewelry items after a ceremony can avoid these substantial problems.

Discontent by one or both of the spouses, resulting in legal action.

Parents and elders have often been called on to fix marital issues. As younger spouses or families across the world no longer have the same respect for parents and elders, these problems escalate beyond reason. Attorneys involved have no incentive to preserve family integrity or reputation. Also, any battle in the court system is public record and is a public hearing. Whether because of the myth of what one spouse is “entitled" to by Facebook and the media, or through the brash statements of a lawyer, or by actual verbal or physical abuse by one of the spouses, I have witnessed an increase in the number of court filings for Indian marriages.

Sometimes, the court system is necessary in order to prevail against an unreasonable spouse. Other times, however, the cost of paying for attorneys and the “time" cost of filing lawsuits is not understood at the beginning of any case. The court system allows for up to one year in trying cases dealing with property. Short-term support issues such as temporary alimony may be dealt with in 30-45 days. Custody can take up to 18 months. The cost of these avenues may range from $6,000 to the many tens of thousands of dollars, depending on what approach a family takes to these issues.

Prior to engaging in the litigiousness of the court system, and if elders cannot help, a family can seek private mediation or arbitration in order to preserve the reputation of all involved, as well as significantly reduce the cost.

Threats of actions in India.

The final common occurrence in these hiccups to marriage is the threat of concurrent legal action in India, especially by the family that still remains in India. Every family knows their own region of India and what authorities will do in that region. However, money can influence authorities in ways that do not exist as much in the United States. Threats have ranged from physical harm to family members, to legal action that will prevent one spouse from ever traveling in India, to straight bribery. Be cautious of the threats and consequences in India if you are in the unfortunate situation of dealing with a separation here.

Closing Remarks

Most of the challenges listed above can be addressed and planned proactively, just as any wedding. Take detailed care in considering these issues as carefully as you would select your priest at a ceremony.

-- Ketan Soni is a Divorce and Estate Planning lawyer with Hull & Chandler, P.A., who often also mediates disputes in the Charlotte area. He can be reached at ksoni@lawyercarolina.com or 704-375-8488.