BY ATTY. KENNETH REYES

DIVORCE can be a bit complicated specially if there is 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 is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration.  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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  Website  kenreyeslaw.com. ■

BY ATTY. DANIEL HANLON

LAST year, the U.S. Court of Appeals for the 9th Circuit granted a joint motion to dismiss a case in which it had previously ruled that a person who entered the U.S. through the use of a fraudulent document had not been “admitted” to the U.S., such that the person was not eligible to seek adjustment of status to green card. The Court vacated its prior decision, as the parties agreed to reopening the case before the Board of Immigration Appeals (BIA) where they will re-argue whether a waiver of misrepresentation remains available in conjunction with an application for adjustment of status, as had long been the practice in the Immigration Courts and before the BIA.

In Orozco v. Mukasey. 521 F.3d 1068 (9th. Cir 2008) the court evaluated whether a person who attained entry through the use of a green card issued in the name of another person, could apply for adjustment of status in the U.S.  Generally, a person must establish that he was “admitted” to the U.S. in order to seek adjustment of status.  In making an application for adjustment of status, an applicant must also prove that he is not “inadmissible” to the U.S.  Certain grounds of inadmissibility may be “waived” during the process, such as prior criminal convictions or immigration violations.  For instance, a person who previously entered the U.S. under an assumed name, as was the case in Orozco could be granted a waiver of inadmissibility due to fraud, if he could establish that his U.S. Citizen or green card holding spouse or parent would suffer “extreme hardship” if he were not admitted to the U.S. as a green card holder.

For years, the waiver application under INA §212(i) was used to waive application of inadmissibility due to fraud in conjunction with an application for adjustment of status. BIA and Federal Court jurisprudence acknowledged that a waiver, if granted, operates to “cure” the ground of inadmissibility due to fraud, such that the applicant for adjustment of status with a waiver would be deemed to have been legally admitted and thus eligible to seek adjustment of status.

Initially, the Court in Orozco held that even a waiver of a prior entry through fraud could not operate to render that entry an “admission” under the Immigration Act for the purposes of seeking adjustment of status.  Each year, many people enter the U.S. under an “assumed name” or through some other form of fraud.  While this illegal conduct cannot be condoned, the Immigration & Nationality Act has long provided for certain waivers of illegal conduct based on a person’s after-acquired equities in the U.S., such as the existence of strong family ties and hardships to innocent family members due to the deportation of the offender.   The Court’s decision in Orozco appeared to eviscerate the long-standing practice of allowing waiver applications to render a previous entry through representation an “admission.”

Since the Court has vacated its prior decision, waivers should be available, as before, under similar circumstances.  Of course, these waivers are not easy to obtain, as an applicant must establish “extreme hardship” to his qualifying relative spouse or parent to have any hopes of receiving a waiver.  Applicants for adjustment of status facing obstacles due to prior misrepresentation should consult with competent counsel for a fair evaluation of their eligibility for a waiver and discussion of the associated risks.

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Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993.  Mr. Hanlon is the founder of Hanlon Law Group, a P.C.  He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California.

Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers.  Mr. Hanlon also has vast experience in all family-based Petitions and in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods.

Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability.

Mr. Hanlon graduated “With Distinction” from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles.   He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee.  Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments.  Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website:  www.hanlonlawgroup.com, email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it . ■