I assume this means I can't end up in someone else's body either.
April 30, 2011 12:16 PM Subscribe
IANAL, and you may or may not be, but why is it is illegal to marry for insurance purposes?
I watched an episode of Drop Dead Diva (shut up! It is awesome) last year and there was an episode where a US lawyer discovered that she had married a man because he needed insurance. IIRC, she did not ever live with him. She was concerned because this was insurance fraud and she could get in trouble with... someone. I was discussing this with a law student friend of mine, and she was insisting it was illegal to get married so the other person could have insurance, but she couldn't tell me how exactly it was illegal, how they would get caught, or what charges they could get arrested on.
So.... Given that there are no laws that say a marriage must be consummated, that a couple must live together, that a couple must be in love, or that a couple must be in a real relationship, how was that illegal and/or going to get her in trouble with... I don't know, the California bar association, or someone? Assuming both people are American citizens, and it is legal for them to get married to each other, are there any other laws that determine if a marriage is legitimate? Could this character be in more trouble because she is a lawyer? Is it actually against the law to marry for insurance?
I watched an episode of Drop Dead Diva (shut up! It is awesome) last year and there was an episode where a US lawyer discovered that she had married a man because he needed insurance. IIRC, she did not ever live with him. She was concerned because this was insurance fraud and she could get in trouble with... someone. I was discussing this with a law student friend of mine, and she was insisting it was illegal to get married so the other person could have insurance, but she couldn't tell me how exactly it was illegal, how they would get caught, or what charges they could get arrested on.
So.... Given that there are no laws that say a marriage must be consummated, that a couple must live together, that a couple must be in love, or that a couple must be in a real relationship, how was that illegal and/or going to get her in trouble with... I don't know, the California bar association, or someone? Assuming both people are American citizens, and it is legal for them to get married to each other, are there any other laws that determine if a marriage is legitimate? Could this character be in more trouble because she is a lawyer? Is it actually against the law to marry for insurance?
I don't think it is illegal unless the insurance company has specific prohibitions on this type of thing or if there is some law that I am unaware of that prohibits it. If all the company specifies is that you be married and you pay the premiums and you meet that criteria, I can't see how it is fraud or illegal.
posted by murrey at 12:41 PM on April 30, 2011
posted by murrey at 12:41 PM on April 30, 2011
I've wondered about this, too, after seeing various things on TV and in films. Banished, it doesn't seem like deception as no one is pretending to not be married. People get married for all sorts of reasons. I'm sure someone with legal expertise will come in and clear it up, but I'm guessing things like insurance and citizenship are just forbidden reasons for marriage, rather than that those cases are illegal for some other reason.
posted by monkeymadness at 12:43 PM on April 30, 2011
posted by monkeymadness at 12:43 PM on April 30, 2011
IANAL but as long as they're both citizens and free to marry (i.e. not siblings, not already married to someone else, etc.) then there's no law being broken. And, even on the remote chance that the insurance company wanted to allege fraud, there would be no criminal action (no arrestable offense). The insurance company would have to sue them in civil court and try to recoup the money they paid out for the spouse's medical expenses.
posted by amyms at 12:43 PM on April 30, 2011
posted by amyms at 12:43 PM on April 30, 2011
I was also thinking fraud, but what's the deception? They really are married. After all, insurance eligibility isn't based on having sex with someone, loving with them, living with them or anything along those lines. It's based on marriage. They said they're married. They're married. Where's the deception?
posted by If only I had a penguin... at 12:43 PM on April 30, 2011
posted by If only I had a penguin... at 12:43 PM on April 30, 2011
I am a lawyer (though I do not practice family law). I am not your lawyer. This is not legal advice. If you are considering undertaking a marriage for insurance purposes, consult a competent attorney in your jurisdiction.
Sham marriages are primarily an issue in immigration, and a specific law was passed to prevent the use of a sham marriage to bypass immigration restrictions: the Immigration Marriage Fraud Amendments of 1986. The law prohibits marriages entered into solely to obtain immigration benefits from being use to obtain those benefits.
It's Fraud... an intentional deception made for personal gain or to damage another individual.
It's only fraud if the couple is not, in fact, legally married. And in general the courts will consider the couple married even if the marriage was entered into for specific, mercenary reasons. There are a whole host of cases holding such marriages valid, thus preventing the use of annulment rather than divorce to get out of a marriage of convenience. The immigration laws do not void a sham marriage, they just don't allow the marriage to be used for immigration purposes.
No, the real problem is that the insurance contract itself may specify what constitutes a covered spouse. It may not apply only to a spouse but rather to a "spouse, if a resident of the same household." That was the language in the contract in United Services Auto. Ass'n v. Akers, 102 Nev. 598 (1986). The insurance company argued in that case that the couple (allegedly a male and female homosexual married to avoid discharge from the Air Force) did not live together and so the wife was not covered under the policy.
posted by jedicus at 12:52 PM on April 30, 2011 [9 favorites]
Sham marriages are primarily an issue in immigration, and a specific law was passed to prevent the use of a sham marriage to bypass immigration restrictions: the Immigration Marriage Fraud Amendments of 1986. The law prohibits marriages entered into solely to obtain immigration benefits from being use to obtain those benefits.
It's Fraud... an intentional deception made for personal gain or to damage another individual.
It's only fraud if the couple is not, in fact, legally married. And in general the courts will consider the couple married even if the marriage was entered into for specific, mercenary reasons. There are a whole host of cases holding such marriages valid, thus preventing the use of annulment rather than divorce to get out of a marriage of convenience. The immigration laws do not void a sham marriage, they just don't allow the marriage to be used for immigration purposes.
No, the real problem is that the insurance contract itself may specify what constitutes a covered spouse. It may not apply only to a spouse but rather to a "spouse, if a resident of the same household." That was the language in the contract in United Services Auto. Ass'n v. Akers, 102 Nev. 598 (1986). The insurance company argued in that case that the couple (allegedly a male and female homosexual married to avoid discharge from the Air Force) did not live together and so the wife was not covered under the policy.
posted by jedicus at 12:52 PM on April 30, 2011 [9 favorites]
It definitely could be fraud. The insurance contract would not be the only controlling document -- the law of her jurisdiction would also control, and I wouldn't be shocked to know that a given state had made it illegal to enter into a false marriage for the purpose of obtaining insurance. She could be sued civilly by the insurance company and depending on the jurisdiction, they could get not only actual damages (the amount of money they lost due to the fraud) but also additional damages (some statutes, for instance, provide for treble damages). It's possible that there could be criminal charges, depending on the criminal code in the jurisdiction.
She could also, yes, get in trouble with the bar. State bars really REALLY dislike it when lawyers monkey around with money. (More so when lawyers monkey around with client money, but any kind of monkeying around with money is Bad News.)
I'm going to assume that the spouse who needed insurance was also getting it at a lower cost than if he got it on his own. It may be that he also couldn't qualify on his own. That's where the fraud comes in -- insurance companies provide coverage to spouses in these situations because their actuarial tables indicate that it's cheaper to cover married people than single people. In this case, these two people are saying they are married, but they're not actually living as married or even living as if they consider themselves married. Presenting themselves as married to the insurance company is a deception that they benefit from, and that is fraud.
posted by devinemissk at 12:53 PM on April 30, 2011
She could also, yes, get in trouble with the bar. State bars really REALLY dislike it when lawyers monkey around with money. (More so when lawyers monkey around with client money, but any kind of monkeying around with money is Bad News.)
I'm going to assume that the spouse who needed insurance was also getting it at a lower cost than if he got it on his own. It may be that he also couldn't qualify on his own. That's where the fraud comes in -- insurance companies provide coverage to spouses in these situations because their actuarial tables indicate that it's cheaper to cover married people than single people. In this case, these two people are saying they are married, but they're not actually living as married or even living as if they consider themselves married. Presenting themselves as married to the insurance company is a deception that they benefit from, and that is fraud.
posted by devinemissk at 12:53 PM on April 30, 2011
Speaking as a law student: don't listen to unsupervised law students on legal matters, especially when they can't provide a cite.
Per 8 U.S.C.A. § 1325(c) (among other statutes), sham marriages created to evade immigration laws are illegal. There are other statutes here and there on a state level prohibiting sham marriages for this and that - there's a CA statute forbidding sham marriages for to emancipate minors - but I've never heard of a general prohibition against a sham marriage for insurance purposes. I wouldn't be surprised if there was such a statute, but I also wouldn't be surprised if there wasn't such a statute.
Sham marriages aren't necessarily fraud, by the way. Lying about being married would be, but that's a critical distinction.
Also, a sham marriage is not necessarily void or invalid in and of itself - it might just be voidable. For example, the Supreme Court ruled in Lutwak v. U.S. that sham marriages entered into to game the War Brides Act could still be valid marriages - the crime there wouldn't be the marriage itself, but the conspiracy, with marriage as a step, of evading immigration laws. In that vein, I've found some case law indicating that state courts are very willing to treat sham marriages as real marriages for other purposes - I saw one case where a state court in 2009 was willing to allow an illegal immigrant's sham wife to receive her deceased husband's workman's comp benefits, because hey, if you're married you're married.
This is all just purely recreational Wexising I've done right now. IANAL, IANYL.
posted by Sticherbeast at 12:55 PM on April 30, 2011 [1 favorite]
Per 8 U.S.C.A. § 1325(c) (among other statutes), sham marriages created to evade immigration laws are illegal. There are other statutes here and there on a state level prohibiting sham marriages for this and that - there's a CA statute forbidding sham marriages for to emancipate minors - but I've never heard of a general prohibition against a sham marriage for insurance purposes. I wouldn't be surprised if there was such a statute, but I also wouldn't be surprised if there wasn't such a statute.
Sham marriages aren't necessarily fraud, by the way. Lying about being married would be, but that's a critical distinction.
Also, a sham marriage is not necessarily void or invalid in and of itself - it might just be voidable. For example, the Supreme Court ruled in Lutwak v. U.S. that sham marriages entered into to game the War Brides Act could still be valid marriages - the crime there wouldn't be the marriage itself, but the conspiracy, with marriage as a step, of evading immigration laws. In that vein, I've found some case law indicating that state courts are very willing to treat sham marriages as real marriages for other purposes - I saw one case where a state court in 2009 was willing to allow an illegal immigrant's sham wife to receive her deceased husband's workman's comp benefits, because hey, if you're married you're married.
This is all just purely recreational Wexising I've done right now. IANAL, IANYL.
posted by Sticherbeast at 12:55 PM on April 30, 2011 [1 favorite]
In this case, these two people are saying they are married, but they're not actually living as married or even living as if they consider themselves married. Presenting themselves as married to the insurance company is a deception that they benefit from, and that is fraud.
Marriage does not require that the couple present themselves as married or live as if they consider themselves married. Certainly people can be married and quiet about it (except for things like contracts, taxes, etc where marital status is asked about). And living as if they consider themselves married is likewise immaterial. A couple who thought themselves divorced and went on to live separately but are in fact still married (e.g. because the divorce procedure was not properly followed) may nonetheless be prevented from remarrying.
Per 8 U.S.C.A. § 1325(c) (among other statutes), sham marriages created to evade immigration laws are illegal
The marriage isn't illegal, the act of getting married for that purpose is. As far as I can tell, someone entering into such a marriage is still married, they're just going to prison for it.
posted by jedicus at 1:08 PM on April 30, 2011
Marriage does not require that the couple present themselves as married or live as if they consider themselves married. Certainly people can be married and quiet about it (except for things like contracts, taxes, etc where marital status is asked about). And living as if they consider themselves married is likewise immaterial. A couple who thought themselves divorced and went on to live separately but are in fact still married (e.g. because the divorce procedure was not properly followed) may nonetheless be prevented from remarrying.
Per 8 U.S.C.A. § 1325(c) (among other statutes), sham marriages created to evade immigration laws are illegal
The marriage isn't illegal, the act of getting married for that purpose is. As far as I can tell, someone entering into such a marriage is still married, they're just going to prison for it.
posted by jedicus at 1:08 PM on April 30, 2011
The marriage isn't illegal, the act of getting married for that purpose is.
Yes, you're absolutely right. I had written "entering into a sham marriage" but then it got lost as I was editing my post.
posted by Sticherbeast at 1:11 PM on April 30, 2011
Yes, you're absolutely right. I had written "entering into a sham marriage" but then it got lost as I was editing my post.
posted by Sticherbeast at 1:11 PM on April 30, 2011
My first thought is insurance fraud. But, it's not like a fake marriage to a foreigner to get them citizenship, which is illegal. Unless it's barred by the insurance contract (possible), or unless this type of reason for marriage is barred by state law (unlikely, I'm guessing), it's probably perfectly lawful.
posted by J. Wilson at 3:00 PM on April 30, 2011
posted by J. Wilson at 3:00 PM on April 30, 2011
IANYL. None of the following is my advice to you or to any other living human. It is merely my own musings based upon my own professional and personal experiences. Proceed with caution. Don't feed the bears.
Marriage is only illegal if one of the spouses is not of the legal age to consent to marriage in the relevant jurisdiction, or if one of the spouses is presently married to another individual.
The later issue is a fraud on a third party issue, wherein a third party relies upon your misrepresentation, which you knew to be false, to the third party's detriment, and based upon this knowing and fraudulent misrepresentation the third party suffers damage(s). This is the general basis for a civil fraud cause of action in the U.S., but is more closely the rule in California. Keep in mind, there is a strong distinction between criminal fraud and civil fraud. Further, there does not exist an actual cause of action for fraud in California civil law, as the relevant causes of action are called negligent misrepresentation and intentional misrepresentation, although the word "fraud" appears in the codes and in the jury instructions (CACI/BAJI) with respect to awards of punitive damages ("malice, fraud, or deceit").
The primary place where this comes up is not in the immigration context, surprisingly. It is actually in military prosecutions against servicemembers who falsely claim to be in a marriage in order to obtain substantially higher levels of pay based on same. This is a commonly prosecuted crime. In the immigration context, it is a pertinent issue, but it is relatively difficult to prove that a marriage is a "sham" marriage. After all, who is to determine what constitutes a "sham" marriage? USCIS accepts telephonic marriages, and will certainly look upon certain marriages with a greater degree of scrutiny. But certainly, USCIS does not have a guidebook to determine how many times spouses need to copulate in order for the marriage to not be deemed a "sham." Where people get into trouble is when they knowingly provide false information to a Federal agency (USCIS) in connection with an affirmative and sworn statement to same. Having a sexless, separate marriage does not necessarily preclude your spouse from obtaining an adjustment of status based on a marriage to a U.S. citizen, but it assuredly will incur a great deal of scrutiny. Exceedingly few prosecutions based on marriage fraud take place in this county, and usually it is the result of: (1) someone walking into a USCIS office and confessing (see Fernanda Romero); or (2) blatant fraud where a citizen has married 7+ different immigrants and then quickly divorced them. These were the two most high-profile prosecutions in the Central District of California in the past year related to this particular crime.
In the context of insurance, this issue is a little more nuanced. If we are talking health insurance, this is almost a non-issue and not worth discussing due to the likelihood of this issue actually coming to a head in this respect. In terms of life insurance, this could potentially become an issue, but it would be very unusual. Generally, in order to TAKE OUT a life insurance policy on another, you need to have an insurable interest such as defined kinship or a business partnership in some instances. This would only be a problem in the event of a payout, where the insurer could decline to make the payout based on factors relating to the bona fides of the marriage. I have never heard of this occurring, as this is not something that could easily be discovered by the insurance company such as an undisclosed medical condition contained in medical records. However, this would not preclude an individual from taking out a policy on themselves, paying the premiums, and naming some third-party as a beneficiary of the policy.
In closing, two places you should never get legal advice are from TV and from law students. Law students don't realize until it is too late (right after they start practicing), that they don't know 10% of what they thought they knew when they graduated from law school.
posted by Mr_Crazyhorse at 3:22 PM on April 30, 2011 [4 favorites]
Marriage is only illegal if one of the spouses is not of the legal age to consent to marriage in the relevant jurisdiction, or if one of the spouses is presently married to another individual.
The later issue is a fraud on a third party issue, wherein a third party relies upon your misrepresentation, which you knew to be false, to the third party's detriment, and based upon this knowing and fraudulent misrepresentation the third party suffers damage(s). This is the general basis for a civil fraud cause of action in the U.S., but is more closely the rule in California. Keep in mind, there is a strong distinction between criminal fraud and civil fraud. Further, there does not exist an actual cause of action for fraud in California civil law, as the relevant causes of action are called negligent misrepresentation and intentional misrepresentation, although the word "fraud" appears in the codes and in the jury instructions (CACI/BAJI) with respect to awards of punitive damages ("malice, fraud, or deceit").
The primary place where this comes up is not in the immigration context, surprisingly. It is actually in military prosecutions against servicemembers who falsely claim to be in a marriage in order to obtain substantially higher levels of pay based on same. This is a commonly prosecuted crime. In the immigration context, it is a pertinent issue, but it is relatively difficult to prove that a marriage is a "sham" marriage. After all, who is to determine what constitutes a "sham" marriage? USCIS accepts telephonic marriages, and will certainly look upon certain marriages with a greater degree of scrutiny. But certainly, USCIS does not have a guidebook to determine how many times spouses need to copulate in order for the marriage to not be deemed a "sham." Where people get into trouble is when they knowingly provide false information to a Federal agency (USCIS) in connection with an affirmative and sworn statement to same. Having a sexless, separate marriage does not necessarily preclude your spouse from obtaining an adjustment of status based on a marriage to a U.S. citizen, but it assuredly will incur a great deal of scrutiny. Exceedingly few prosecutions based on marriage fraud take place in this county, and usually it is the result of: (1) someone walking into a USCIS office and confessing (see Fernanda Romero); or (2) blatant fraud where a citizen has married 7+ different immigrants and then quickly divorced them. These were the two most high-profile prosecutions in the Central District of California in the past year related to this particular crime.
In the context of insurance, this issue is a little more nuanced. If we are talking health insurance, this is almost a non-issue and not worth discussing due to the likelihood of this issue actually coming to a head in this respect. In terms of life insurance, this could potentially become an issue, but it would be very unusual. Generally, in order to TAKE OUT a life insurance policy on another, you need to have an insurable interest such as defined kinship or a business partnership in some instances. This would only be a problem in the event of a payout, where the insurer could decline to make the payout based on factors relating to the bona fides of the marriage. I have never heard of this occurring, as this is not something that could easily be discovered by the insurance company such as an undisclosed medical condition contained in medical records. However, this would not preclude an individual from taking out a policy on themselves, paying the premiums, and naming some third-party as a beneficiary of the policy.
In closing, two places you should never get legal advice are from TV and from law students. Law students don't realize until it is too late (right after they start practicing), that they don't know 10% of what they thought they knew when they graduated from law school.
posted by Mr_Crazyhorse at 3:22 PM on April 30, 2011 [4 favorites]
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posted by banished at 12:28 PM on April 30, 2011