If you or your spouse is not an American citizen and/or you were married in another country or live in another country, you may wonder what your options are when it comes to divorce. Must you divorce where you are living? Can you get a divorce in the U.S? These are important issues, and an attorney with experience handling international divorce can help you resolve them.
Determining Where You Can File for Divorce
There is a two-prong test to meet to determine if you can divorce in a country:
- Your marriage must be legally recognized in the country where you are divorcing. In general, marriages legalized in other countries are recognized in the U.S. However, the reverse is not always true, particularly when it comes to same-sex marriage. If you are a same-sex couple married in the U.S. or another country that recognizes same-sex marriages, your marriage may not be considered legal in some other countries, such as Poland and Israel, and therefore you cannot divorce there.
- You must meet the connection or residency requirements set out by the country in question. The divorce court must have jurisdiction over your case. Some countries will permit a divorce if one of you is a “national” of the country. Others allow it if one of you is a “habitual resident” of the country. The U.S. requires that one of you be a resident at the time of the filing, but “residency” is determined differently by each state and has to do with how long you have lived or been in the state and is not the same as residency for immigration status.
Added to this is the consideration of whether the court can not only grant the divorce, but can grant financial relief. U.S. courts can grant a divorce if only one party is domiciled in the U.S. and meets the residency requirements of the state where the case is filed. The other party need never have even been to the U.S. for the divorce to be granted. However, if there is a request for financial distribution or relief, a U.S. court can only grant this if one spouse meets the residency requirements and the other spouse has at least minimum contacts in the state. Some states will distribute property located within the state without the second spouse meeting the minimum contacts rule since that property is under the jurisdiction of that state simply by its location.
Deciding Where to File
Many international couples find that they qualify for divorce in more than one country, giving them a choice of venue. If you have a choice between two countries, it is a good idea to meet with an attorney experienced in international divorce who can help you understand and weigh the differences in laws between the two countries.
Factors to weigh include:
- Whether your prenuptial or postnuptial agreement is recognized in each country
- What level of financial disclosure is required in each jurisdiction
- What grounds (reason) for the divorce is legally required in each country
- What assets are involved and where they are located
- The practicalities of divorce in each country (how long you need to be present there for, for example)
- The length of the divorce process in each country
- The ease or difficulty of enforcing orders issued in each country
- The cost of the process and attorney’s fees in both countries
- Rules involving spousal support and child support in both locations
- How each country resolves a forum dispute (if your spouse wants to handle the divorce in one country and you want it in the other)
- How custody is determined in each country and what you can expect
- How assets are divided in both countries and what a likely outcome would be
If you file in the U.S. and your spouse files in a foreign country, the U.S. court will consider the following when deciding whether to continue to hear the case:
- If some or all of the property in the case is located in the state where the case was filed
- If that state court’s interest in the divorce is greater than the foreign court’s, even if the parties are domiciled in the U.S.
- Whether more of the evidence is located abroad, evidence is in a foreign language, the witnesses are abroad, and/or one or both spouses live abroad
- Whether one or both spouses is domiciled in the state where the case was filed in the U.S.
- Whether the person domiciled in the U.S. would face considerable hardship if forced to participate in the case filed abroad
Hague Conference and Asset Division
More than 80 countries are members of an international agreement called the Hague Conference on Private International Law. This creates guidelines the cooperating countries are to follow for international divorce. The law also provides the couple with a choice as to which country’s law will be used to determine the division of their assets.
They can choose the laws of the country where:
- One of them is a citizen
- One spouse has a primary residence; or
- One of the spouses has begun a new primary residence
If they cannot agree, then the property is divided using the laws of the country where they had their first primary residence when they first got married.
Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
This is a similar international agreement that governs spousal and child support. Countries that are signatories to this convention agree that they will enforce each other’s child support and spousal support orders. However, countries that are not part of the convention may not enforce them, which can lead to problems in the future, depending on where your ex-spouse moves to.
International Custody Issues
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a law enacted across the U.S. that requires states to recognize jurisdiction and custody orders of other countries as long as the parents had notice and an opportunity to be heard.
The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement that requires participating countries to return children abducted by a parent to a foreign country in contravention of an existing custody order. The Convention also states that children are best served by having the laws of the country where their habitual residence is located applied to their custody cases. The U.S. Supreme Court has held that habitual residence will be decided on a case-by-case basis and will not depend on any agreement by the parents as to where to raise the child.
Prenuptial and Postnuptial Agreements
Many international couples recognize the many uncertainties involved in international divorce and choose to enter into prenuptial or postnuptial agreements that spell out not only how assets will be divided and how alimony will be paid in case of a divorce, but also specific a jurisdiction and choice of law to be applied in the event of a divorce.
International divorce is extremely complex and requires the advice of a very experienced and knowledgeable attorney who has handled similar cases and has contacts in other countries.