This may not be breaking news, but international divorces involve complexities that make them much more challenging than the standard divorces involving two citizens and residents of the U.S. The rule of thumb is: if you are merely divorcing a spouse, look for the simplest and cheapest way out of the marriage. If you have assets and/or children from the union, your divorce will be complicated and probably expensive. In both cases, retain a lawyer who has expertise in international divorces.
The details will determine the complexity of your divorce
If you are considering a move with your partner to another country, and you are now or plan to be married, we detail some considerations for you to entertain:
- If you have not already, get a pre-nuptial agreement drawn up (or post-nup if you are married), that settles the same issues that a divorce would require settling if you were to divorce in the U.S. Issues would include child custody, child support, spousal support, and property you own. We appreciate that pre-nups and post-nups can be unromantic and uncomfortable things to discuss, but you must plan for every contingency. Be certain to distinguish what property you agree is separate property and which property is to be considered marital property in your settlement agreement. One must acknowledge that there is no assurance your pre-nup, post-nup and property settlement agreement will be recognized by a foreign court, but if they are not recognized, you will have a solid basis to work from in another court.
- If you own property here, do not sell it if possible. Rent it out instead. If your marriage goes south, you will still have your home and can refer to it as your permanent residence. If you run into challenges trying to bring your children back to the States, having a residence is the stronger hand.
- Maintain contacts with work associates. It will prove invaluable to have people to reach out to if you have to return to the U.S. to re-enter the work force. Keep up with family and friends. They too could be helpful upon a return
- Should you become pregnant and then determine that the marriage is over, you must make some quick decisions about where you want to be when you give birth. Some countries will prevent you from relocating a child from their country, sometimes threatening kidnapping charges. If the marriage is truly over, it is probably wise to leave well before you are due. The Hague Convention of 25 October 1980 is an international agreement
The Hague Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.The Hague Conventionbetween countries that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. In other words, you could be prevented from leaving with your child
- Trying to leave another country with children could also be considered kidnapping if you leave the country without a written agreement with your spouse. The Hague Convention might require that a court in this country order you to return to the country you left without an agreement by your spouse (In other words, do not leave in the middle of the night – you may be forced to return).
- If you’ve planned everything out before leaving your host country, do not forget to bring with you any documents that will be helpful in a divorce proceeding. If there is evidence of abuse (physical, emotional, etc.), be certain to bring that with you. In other words, bring home evidence you might use if you file for divorce claiming a fault ground in your State. Do not assume a divorce will be a no-fault one. Things change.
The bottom line? Divorce is likely to be even more complicated and exhausting both financially and emotionally if you’re living abroad.
In all likelihood, your greatest challenge to an international divorce will not be your spouse, but a question of jurisdiction. In some foreign legal systems, courts will bind a couple on jurisdiction based on citizenship in that country. The consequence of a foreign legal system seizing jurisdiction is the likelihood that two jurisdictions will hear and rule on the same issues for the same couple. It does not take much imagination to guess at the degree of chaos that would cause.
Once a divorce is settled by a foreign court, the decision must be enforced to have value. In order for a judgment to be enforced and have teeth, it must be registered in another jurisdiction where the other partner lives. It is not unusual to take a ruling by a foreign court finalizing a divorce to another country, and discovering that that court order is not be enforceable in that jurisdiction (country).
- Guam has a residency requirement of 90 days, but if the divorce is uncontested, the residency requirement is reduced to just 7 days. One of you must reside on the island for at least 7 days before you can file divorce papers
- The Dominican Republic also offers quick divorces. There are 4 requirements that must be met in order to be divorced. In theory, one could divorce in a single day. Those requirements are: 1. mutual consent by both spouses, 2. a power of attorney, 3. the appearance of one spouse, 4. and an agreement and consent to jurisdiction
International Academy of Matrimonial Lawyers
International Divorce UK
Siam Legal (Legal Services of Thailand)
Country-Specific Legal Information
A Practical Guide to International Divorce in the Foreign Service
A Family Resource Guide on International Parental Kidnapping (U.S. Dept. of Justice)
Office of Child Support Enforcement (International) – U.S. Dept. of HHS)
Preventing International Child Abduction in Divorce (American Bar Association)
Family Law – Australia
Family Law – U.S. Dept. of State – International
U.S. Department of State International Child Support Enforcement
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