By: Karolina Dehnhard, Esq.
Norris McLaughlin, P.A.
In my practice, I often represent international couples — couples who have different nationalities or who are citizens of other countries while living in the United States. Although many issues must be addressed when such a marriage experiences an irretrievable breakdown, the most important issue is jurisdiction. Specifically, where do you file for divorce, and how can you be sure the divorce will be valid in each party’s country of nationality or citizenship? Although one size does not fit all for all countries across the globe, here are some important facts to consider when contemplating filing an international divorce.
First, if one of the spouses resides in the United States, and especially if there are minor children of the marriage who will continue to reside there, strong consideration should be given to filing a Complaint for Divorce domestically. That said, divorce laws throughout the 50 states are not consistent; in fact, they vary greatly across the country. If both you and your spouse live in New Jersey, then jurisdiction would be proper in that state. However, if you and your spouse live separately in different states, then you may have the option of choosing from more than one state.
If, after considering whether or not to file in the United States, a decision is made to file abroad, it is critical that the filing party becomes well acquainted with the laws in the country where they will file. While divorce laws differ somewhat from state to state, the differences between countries are truly stark. One of the most critical aspects to consider is that for the most part, parties filing for divorce in the United States are obligated to fully disclose all assets and financial information, while many European and other countries (such as Japan) may not require any disclosures, or may limit greatly what one spouse must provide to the other. This obviously can have substantial impact on what, if anything, the supported spouse will receive.
Another consideration is whether or not a foreign divorce will be recognized in the United States. The answer is typically yes, assuming that the foreign divorce is domesticated; however, for that judgment to be domesticated, it has to meet certain requirements depending on the State where the application for domestication is filed. Generally, the U.S. Department of State provides that most states require that both parties receive notice and an opportunity to be heard in any divorce proceeding. The documentary evidence to support this requirement is especially critical if the divorce was granted in a foreign country by default.
Clients often question the impact of the Hague Convention on recognition of international divorces. While the United States is a signatory to the Hague Convention (an international treaty providing, in part, for equal legal recognition), the United States is not a signatory to the provision that automatically recognizes foreign divorce decrees.
While jurisdiction, — that is, the court where a divorce complaint may be filed — is the first step, as it gives a litigant access to the Court, it is important to remember that the “issues” part of a divorce tend to focus on splitting up assets and debts, establishing finances, and providing for unemancipated children. However, do not be fooled. Simply because the broad categories of topics may be the same, the rights of the respected spouses within each category certainly may not. For example, what constitutes separate property in one country, and therefore is protected at the time of the divorce from distribution, may not be separate property in another. Custodial rights may also vary greatly. Where one country may be gender neutral, another may subscribe to the tender year’s doctrine and grant custody to the mother. (It wasn’t until recently that divorced fathers in Switzerland were entitled to joint legal custody of their children. Previously, mothers were usually awarded sole custody).
Read “The Intertwining of Domestic Violence and Divorce” here: https://www.theconnectionsnj.com/the-intertwining-of-domestic-violence-and-divorce/
While divorce may end the marriage, some issues will need to be considered long past the time that the ink is dry on the divorce decree: specifically estate planning issues. Inheritance laws, when not understood or properly considered, may have disastrous impact after the death of an ex-spouse. For example, if parties divorce in one country, and that divorce is not recognized in the country where one of the ex-spouses dies while married to another individual, the surviving spouse may not be as easily recognized as one would think. This lack of planning may lead to costly international litigation.
In addition, many other issues must be considered, such as pension benefits acquired in various countries, immigration status, insurance, personal injury awards, and other legal liabilities. Securing well-versed counsel in international divorces cases is key to properly addressing the plethora of issues that may arise.