Concealment of Material Fact

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Latest post 12-28-2008 12:39 PM by chloezoe. 15 replies.
  • 12-23-2008 4:52 PM

    Question [=?] Concealment of Material Fact

    I am seeking an annulment based on fraud. First fraud is maybe moral turpitude, that my husband concealment material fact on his U.S. Immigration documents on concealment of his mental illnes schizophrenia, which I was the petitioner and sponsor. Secondly, the Immigration marriage fraud. And last, the concealment of material fact of his mental illness prior to marriage. I have found caselaw, such as the curtis vs curtis in 1947 appealant, which was overturned because husband continue to live 4 and half months with wife afer discovering the facts of her concealment of mental illness. However, in the lower court he got an annulment based upon the concealment of facts. My question is the marriage took place 12/2005, within 2 weeks we applied for immigration change of status, where he was required to complete medication application, there he falsied govt documents, and knowingly concealed the material fact. In June 2006 I filed for health insurance for the both of us with Blue Shield, there I asked him about any previous health issues, he concealed and I only disclosed that he was a smoker. In November 2006, is when I discovered his mental illness, when he had a psychotic episode, and discovered through his family in his home country that he required weekly medication that was sent from his home country through the U.S. mail. I was able to convince him to see a psychologist at the time of his psychosis. However, I did not understand he needed a psychiatrist instead, and he declined to see a psychiatrist at the advice of his family because they thought U.S. immigration would get this information and deny the residency status.

    Is concealment of mental illness a ground for annulment?

    Is the fact of his concealment a moral turpitude and that his falsification of Govt document is a felony ground for annulment.
  • 12-23-2008 6:22 PM In reply to

    Feedback [*=*] re: Concealment of Material Fact

    Reading the Family Code, it does not seem that your case falls under (c) and the possibility of (d) would seem to be negated by your continued cohabitation. [A non-professional opinion - Caveat Emptor]

    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.
  • 12-23-2008 8:53 PM In reply to

    Question [=?] re: Concealment of Material Fact

    The timeline of events were; marriage 12/2005, immigration documents filed 01/2006, discovered husband's mental disorder 11/18/2006, called immigration to revoke petition 12/05/2006, separated 12/15/06. I dont think continued co-habitation of less than a month is questionable timeline. I wasnt clear of the fraud or his diagnosis, during the few weeks I was trying to help him, not understanding what was really happening. So, I dont think I lived with him for even one month after my discovery.
  • 12-23-2008 11:37 PM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
    • PA
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    re: Concealment of Material Fact

    Laymasn take:

    What steps is government taking to deport him based upon falsified information. Calling doesn't often set anywheels in motion!

    Also, unless he has a currently valid prescription he may be in violation of a variety of laws to have drugs sent to him by mail--felony conviction may get him deported?

    I see you point as to material misrepresentation but I'mnot sure its a point that counts in CA-as to anullment -best to ask CA divorce counsel



  • 12-23-2008 11:56 PM In reply to

    Feedback [*=*] re: Concealment of Material Fact

    Immigration has allowed me to withdraw my petition, however it was approved during the time of this psychosis. According to Immigration they had to wait until his conditional greencard expired, which was this past November 2008. It's now a wait and see what happen. I was told by Immigration my petition is now invalid. I provided the divorce court and immigration a copy of prescription that was sent from his country dated 05/2006, and he has admitted he family occasionally mails him medication, under oath. Immigration has tons of documentation of my discovery in their possession. Concealment of material fact is one other fraud I would like to use for grounds of annulment, had I known he had a mental illness I would not have consented to marry him.
  • 12-24-2008 10:10 AM In reply to

    re: Concealment of Material Fact

    Concealment of a material fact constitutes fraud only where the person doing the concealment owed a duty of disclosure to the other. I would say that two persons getting married have a duty to disclose to each other serious medical conditions. Where's the line? That's probably a question of fact for the jury. It's probably also the same line that determines whether a particular fact is or isn't material. Query why you're seeking an annulment rather than the far simpler and less expensive dissolution?
  • 12-24-2008 12:22 PM In reply to

    re: Concealment of Material Fact

    "Query why you're seeking an annulment rather than the far simpler and less expensive dissolution?"

    As I recall, the poster was most concerned about an annulment for religious reasons in the past. However, legal and religious annulments are completely different animals.
  • 12-24-2008 8:15 PM In reply to

    Feedback [*=*] re: Concealment of Material Fact

    The purpose for seeking annulment is that I have a legal responsibility to the U.S. Immigration Service of signing a affidavit of support for husband for his legal status up to 10 years with a divorce.
  • 12-25-2008 12:55 PM In reply to

    re: Concealment of Material Fact

    Sorry, an entirely different impression was left with this post:

    "Why are family law courts reluctant in giving annulments? Is it true if one is affiliated with the Catholic Church, the church has some political powers with the courts to advocate for nullity of marriage for a Catholic church member?"

    Perhpas this indicates you were just hoping the church could shortcut the legal process for catholics, rather than concern about divorce within your religion? We get alot of persons who hate their spouses and want to have a legal divorce "equivalent" to get rid of him/her, but retain their standing in the church...which obviously isn't possible. I assumed this was your situation with the question regarding the church.

    You would think the Immigration Dept. would be helpful as your testimony (that he apparently married you under false pretenses) should get him deported.

    The mental incompetency is probably a long shot legally, but I don't blame you for gathering as much ammunition as possible. A judge may agree with your argument. Good luck.
  • 12-25-2008 5:18 PM In reply to

    re: Concealment of Material Fact

    You've had many posts, so forgive me if I have this wrong...but have you ever contacted the Immigration department yourself regarding this issue to offer your testimony that you were defrauded by this apparent con-man?

    It seems to me that if the Dept. judges your marriage to be a fradulent one, they probably have the authority to declare it never existed or to order an annullment when they deport him.

    That would certainly make it easier for you!

    I'd contact an immigration attorney to see if you could make a deal with the govt. and what your status might be if the marriage is found to be fraudulent.

    You and/or your atty can call anonymously.
  • 12-26-2008 9:51 PM In reply to

    Feedback [*=*] re: Concealment of Material Fact

    I am sorry you got the wrong impression. By the way, are you an attorney? However, I think I've made earlier statements in this post on the comments about whether I contacted Immigration. I am asking the attorneys on this post for their comments on concealment of material facts for grounds of fraud for annulment and concealing mental illness. I have read that the Ca. Supreme Court has ruled that concealment of mental illness is grounds for annulment of marriage. In the Bender's law books, it mentions the Curtis v Curtis caselaw 1947, where the Appealant court overturned an annulment judgement because the husband continued to co-habitate with wife 4 1/2 months after discovering his mental illness. However, he was granted nullity of marriage in trial court because of the concealment.
  • 12-27-2008 12:54 PM In reply to

    re: Concealment of Material Fact

    "I think I've made earlier statements in this post on the comments about whether I contacted Immigration"

    ...so is it possible to make a deal or not? As I said, if Immigration declared the marriage fraudulent and void, wouldn't that solve all your issues? Including the 10-year support agreement you signed?

    As it is, you seem to be getting nowhere....mainly because of the mental incompentency angle. The issue is not that a person has mental issues; no one could be married if that prohibited marriage! Courts just don't consider garden-variety "mental illness" good enough for annulment. MANY would get an anullment if it was that easy.

    You can keep pushing that angle if you want, but it seems you're spinning your wheels.

    "I am asking the attorneys on this post for their comments on concealment of material facts for grounds of fraud for annulment and concealing mental illness." Like fuxton once said, you can't choose who responds on the board. You CAN pay a lawyer! As also said, you can be sure if anyone posts legal inaccuracies, the lawyers will come down on them like a ton of bricks.

    Those who post here have experience in legal issues; you can be sure that the mental incompetency road is a long one, if you can get there at all.

    Seems like getting the govt to do the work for you is the short-cut. But it's your time and energy.
  • 12-27-2008 2:08 PM In reply to

    Also...

    ...the law regarding marriage and mental incapacity is actually for the protection of the incapacitated...not the other spouse!

    The standard for mental incompetence is "Does the party have the mental capacity to CONSENT to marriage?"

    In other words, do they UNDERSTAND what they are entering into? Mental illness or not, it's doubtful your STBX didn't realize EXACTLY what he was getting into...in fact, being an illegal looking for citizenship PROVES he was mentally capable of figuring out how to get what he needed.

    First, you must prove that he was mentally incapable before any "concealing" is applicable...he can't conceal what he doesn't have and he certainly had the capacity to understand marriage and what it would do for him. From all you've posted, he is NOT incapable of understanding what you two did together.

    It appears it is a misunderstanding of the legal definition of mental incompetency that is blocking your progress.
  • 12-28-2008 2:39 AM In reply to

    Feedback [*=*] re: Also...

    ZOE:
    Maybe it your confusion and not mine. I understand where I'm going with his mental illness, that is mispresentation of material facts, I dont think I talked about any other in this post. As far as you think I'm spinning my wheels, I am no where near trial, it's a simple arguement of the facts of concealment. Have you litigated a case for mispresentation of material facts in marriage? Have you used or reviewed Curtis v Curtis? What's your experience in the matter of mispresentation to give your view of what the court will do? Do you know the evidence I have to prove his severe mental illness? If you do, maybe you can represent me in court.
  • 12-28-2008 12:39 PM In reply to

    This is a good example...

    ...of why consulting an attorney (for free-$300) would have saved you from wasting your time.

    An attorney would have explained to you the legal theory of CAPACITY. And how useless citing a case from 1947 regarding mental capacity and concealment is to you without proving he is mentally incapable in the first place.

    "Severe mental illness" is NOT the test! Incapable of understanding the concept of marriage IS! It's similiar to criminal trials when the def claims insanity; the test is "Is he capable of knowing right from wrong? Capable of knowing murder is wrong?" YOUR test is "Was he capable of knowing he was entering into a marriage?"

    To put it bluntly, the reference to mental "capability" refers to the mentally handicapped; is he mentally handicapped? As I recall, you said he has his own business...it's clear he has NO mental handicap at all from your post.

    Regarding misrepresentaion of facts: Sorry, but it won't fly, either. If it were possible, people would get annulments for undisclosed former spouses, children, crimes, "you concealed that mother-in-law is a witch",etc....but they can't. Sorry.

    "Have you litigated a case for mispresentation of material facts in marriage? Have you used or reviewed Curtis v Curtis? What's your experience in the matter of mispresentation to give your view of what the court will do? Do you know the evidence I have to prove his severe mental illness?"

    These ARE questions you need to ask an attorney so he can set you straight. Many think the law is simple and they should be able to act as their own counsel, but the law is much more complicated than you realize...hence your wasting of time and energy because of a misunderstanding about mental capacity. Capacity is the most important element here; NOT the word "mental"; the word "illness" is NEVER, EVER used in this situation: depression, alcoholism, bi-polarism, etc. don't count.

    That deafening silence you hear from the lawyers means the case you cite isn't worthy of comment probably for the reason I mentioned: YOU HAVE TO PROVE INCAPABILITY BEFORE THE ISSUE OF CONCEALMENT IS RELEVANT. If I'm wrong, you will hear from them.

    No doubt you're stubborn, but you'll find you can't convince a court just for your situation. You're not the first victim who signed a support agreement for an illegal alien con-man. But you may have to live up to it.

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