Getting divorced is challenging enough, but if you and your spouse live in different countries, it’s hard to know where to begin and what to do afterwards. Where do you file to commence proceedings? And how is the divorce order enforced, especially as it pertains to child custody and division of marital property?
It’s a complicated situation that can apply to couples who consist of:
- Two American citizens with one or both spouses living abroad
- Two foreign nationals residing in the U.S.
- One American citizen and one foreign national living in the U.S. or abroad
When U.S. law and international law interact, knowing what to do can be complicated. Here are some basic facts about international divorces that can assist you.
Filing for Divorce in the U.S.
If you live in the U.S. and your spouse is currently residing in a foreign country, you can still file for divorce in your local state court as long as you or your spouse fulfill that particular state’s residency requirements. In Connecticut, for example, one of you must be a resident in the state for at least a year preceding the date of filing unless:
- You lived there at the time of the marriage and, prior to filing the complaint, returned with the intention of remaining OR
- The cause for the marriage breakdown arose after you or your spouse moved to Connecticut
Filing a Divorce Abroad
If you and your spouse are living in a foreign country, you won’t be able to meet state residency requirements, preventing you from filing for divorce in the U.S.. You will have to file where you currently reside. Most states will recognize a foreign divorce, although enforcing orders like child and spousal support will be difficult if one spouse or the children did not live in the country that issued the divorce order.
Child custody matters in an international divorce are especially challenging. According to the Uniform Child Custody and Jurisdiction Act (UCCJA), if a separation exists between a divorce matter and custody case, the child’s “home state” has jurisdiction over custody matters.
In this instance a “home state” is the location where the child has lived for at least six months or which has significant connections for him or her. It doesn’t have to be in the U.S.: if the child was born in France and resided there for a number of years, a U.S. court may decide that French courts should decide custody.
With international cases there is also a risk of child abduction. The 1980 Hague Convention has established procedures to return children who have been abducted internationally, but it only applies to countries that have signed it. When one parent lives in a country that is not a member of the Hague or is noncompliant with its terms (e.g. Mexico) it is wise to create a custody agreement that prohibits the child from being taken to that country.
Forcing a reluctant parent to pay child support from another country is difficult, but not impossible thanks to the U.S. Office of Child Support Enforcement, which has an agreement with 26 other countries to help enforce child support orders when a parent lives overseas.
Alimony protocols depend on the country where the divorce occurs. If you are awarded alimony in an American divorce but reside overseas, you have to pay tax on it unless a treaty indicates otherwise. If your foreign-resident spouse has been ordered to pay you alimony and suddenly stops, your only recourse is to get him or her physically into the United States to enforce the order to try to get his or her country of residence to support enforcement.
If you have marital property in different countries, it can be tricky to divide assets and debts. An American divorce court values international property according to the laws and taxes of the country where the property is located, and then typically divides it according to the rules of the state issuing the divorce order. It can be difficult to enforce such a ruling, however, as not all countries will support an American judgment.
The world of international divorce can be a veritable maze of conflicting laws and customs, so it is important to consult a lawyer familiar with such cases before you file. Freed Marcroft can help you determine the best way to file as well as advise you on steps that can potentially simplify the process. Call us today.
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