Even under the simplest of circumstances, divorce is usually a complicated process, involving as it does not only the dissolution of a marriage but breaking up of a family and with it a division of assets, responsibilities and custody. However the process becomes further complex if the person you wish to divorce lives in another country. Even then it is not an impossible task and here are a few tips on making it easy.
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Know your state laws
In United States, divorce like marriage is governed under state law. Thus each state will have its own divorce laws; but though state courts maintain jurisdiction over all divorces in that state, courts can enter divorce decrees for any marriage that meets the legal requirements. This includes divorces for couples in which one spouse lives in another country. One of these legal requirements is residency provisions. Though the divorce laws of each state are different, almost all require that at least one spouse meets the state's residency requirement. As long as one spouse resides in a state, either spouse can file for divorce there, even if one lives outside the country.
Hire a good lawyer
Though you can file a divorce petition on your own, for an average person, all the legal minutiae can be overwhelming – more so in a case where your estranged spouse is not even in the country. Under such circumstances, it is best to seek a competent lawyer, preferably one who has had experience in settling divorce cases with an international angle. In overseas divorces, as many as three different sets of law may come into play--international law, the divorce law of your state, and the law of the jurisdiction in which your spouse is located. The American Bar Association provides contact information for state and local bar associations. In turn, these groups provide directories of attorneys that practice in different areas of the law, including divorce matters. In any case, do your homework before you hire the services of a legal expert – ask among friends and relatives who may have faced a situation similar to you for references. Or ask your lawyer of cases that he/she has solved where divorce included one of the spouses residing in another country. Usually the more experienced and successful a lawyer, the higher will his/her fees be. In complicated divorce cases, it may be more prudent to go for expert lawyers even though they are more expensive since they stand a better chance of bringing about a profitable divorce settlement for their clients.
Try for a no-contest divorce
If you are on reasonably good terms with your estranged spouse, see if you can agree on the broad terms of the divorce. When both spouses agree on crucial aspects of the divorce like child custody, child support, division of marital home and other assets, it is known as a collaborative case. Legal expenses and hassles associated with collaborative cases are usually low since spouses already understand each other on major issues and the case can be wrapped up quickly. This is even more pertinent in your case where your partner resides in another country. Try to persuade your spouse to file a joint petition for divorce - also known as an uncontested divorce - which is the easiest way to get a divorce when one spouse lives outside the state. State laws differ, but as long as both you and your spouse agree to all the terms of divorce, filing jointly is the best way to go.
Serving of divorce papers
One of the biggest difficulties in overseas divorce is the dealing with the service of process... All divorces are lawsuits so when you file your lawsuit you have to notify the other party through what is known as service of process. No decree of divorce will be considered legally valid unless your spouse was legally notified of the divorce proceedings. In the meantime also research the "long arm" statute of your state. The long arm statute will determine whether or not the local court will have jurisdiction over your spouse, depending on the nature and extent of your spouse's contact with the state in which the court sits. If you are on civil terms with your spouse, see if he/she agrees to voluntarily waive service of process which will mean one less legal hassle to take care of. Prepare an affidavit of waiver of service of process and send it to your spouse along with a copy of the summons, if your spouse is not trying to evade service of the divorce papers. Ask your spouse to sign it at a U.S. embassy or consulate in the presence of a notary public, who will have to place her seal on the affidavit. If your spouse agrees to waive service of process, you need not concern yourself with the service of process laws of his jurisdiction.
If your spouse does not agree to waive service of process and yet you know where he/she is located, the process will get some more complicated since now you will have to send the summons to your spouse by the method required by the law of the overseas jurisdiction. . You or your lawyer will have to find out about the service of process laws of the jurisdiction where your spouse is located. If the country a member of the Hague Service Convention, which is a multilateral treaty dealing with international service of process, then you can opt for the Letters Rogatory, otherwise known as a letter of request. In some countries, the papers must be served on a central government authority or an overseas agent, who will then guarantee delivery of the divorce papers to your spouse. You should go through a reputable process service company in the country your spouse is residing. Most professional process service companies will have or will know contacts in the country he/she is residing to go through. Other, less effective means include delivery by registered mail, return receipt requested or publication in an overseas newspaper.
The final step
Once your estranged spouse has received the service of process in his/her country he/she will have a fixed number of to file a response. If your spouse fails to do so, he/she will be in default and you can move to have orders issued in relation to your dissolution, like custody, support, division of assets and debts, attorney fees and so on. Likewise if you are permitted to serve him/her via publication, then once the time period for service via publication has transpired, he/she will be deemed in default and you can proceed in the same way. For this, you will be required to appear in court, prove up the basis for the orders being requested, affirm that the orders are equitable and reasonable, and then the court may issue the orders as requested. After this stage onwards, usually the court will move on to approve your divorce decree but is unlikely to enter into any judgments regarding money like spousal and child support, division of marital assets and so on. If you wish to contest your estranged spouse on financial and custody matters, you will have to work in accordance with the divorce and family laws of that country and for this you will need the services of a lawyer expert in both international law as well as the family laws of that country. The process is bound to be time-consuming and emotionally difficult, especially if your estranged spouse is determined not to cooperate. However if certain grave issues are involved like forceful taking away of your child – known as child abduction in international law and a criminal offence – then the extra efforts may well be worth the result.
Divorce when married under foreign laws
If you got married in another country and now wish to divorce your spouse who lives in that country, the process will not be very different. The laws of all U.S. states permit you to obtain a divorce even if your marriage occurred overseas. However the foreign marriage must be valid in accordance of the laws of the country where it occurred. If this is proved, then you can proceed to end your foreign marriage even if you are located in the United States. During the process, as you fill out the divorce petition form, you will come upon one section requires basic information about when and where you got married. In this portion of the petition for divorce, set forth the country, region and locality of your foreign marriage, depending on how the country's political structure is designed. It is important to include the date of the wedding as well. Next you will probably need to attach to the petition the license or certificate issued by the foreign governmental authority confirming your wedding, if that document is available. Though providing this document may not always be mandatory but it will help you to convey to the court information about the foreign marriage through official documentation.
Foreign or offshore divorces
One of the quickest ways to get divorced from a spouse living in another country is to go for something that lawyers call foreign or offshore divorce. Though in this type of divorce, you and your spouse will regain your status as single individuals quickly. Economic issues and financial settlements and rulings on child custody however are not normally ruled on in an offshore divorce. However it may be possible to include a Post Nuptial Agreement detailing custody and economic settlements in an overseas divorce. Such an agreement incorporated into your divorce decree would be designed so that it would be recognized in the United States.
There is a wide variety of reasons why people tend to go for a foreign or offshore divorce. Quite often, US state divorce laws greatly differ from the divorce laws of foreign countries. A spouse may be trying to avoid alimony and trying to save personal assets. For example, countries differ on the length and the amount of alimony, on the laws of property distribution and on what assets are distributed during a divorce. In many cases, the laws regarding the division of marital assets are much more lenient in the foreign country. Also, a spouse who's a citizen of a foreign country may be more familiar and comfortable with the divorce laws of the foreign country as opposed to US laws.
Though obtaining a divorce from an estranged spouse based overseas may be easier through foreign divorce, such a divorce may not be valid in the US. Generally, a divorce granted by a court in a foreign country is recognized as valid by US courts through comity. This is a legal provision where the courts of one country respect and enforce another country's laws and judicial decisions. In most states of the US, the courts will enforce a foreign divorce only if both spouses received adequate notice of the divorce proceeding. This means firstly that one spouse was living in the foreign country at the time of divorce, and secondly that the spouse living in the US received service of process - the formal delivery of legal notice of the divorce proceeding. Again a US divorce court may not recognize the foreign jjudgment of divorce if it was obtained under circumstances that offend public policy. For example, when a foreign divorce includes a child custody decision that wasn't based on the best interests of the child standard, it usually won't be enforced in the US.
At the best of times, divorce is a traumatic process even if spouses do their best to try to work together. Things can only get more complicated when your estranged spouse is located in another country. Anyone involved in a divorce matter in a foreign country should look into the divorce laws of the country, or talk to an experienced attorney, to make sure their interests and rights are protected.
If however you do not know where your spouse is, or cannot otherwise prove service of process, you can ask the court's permission for service through publication. Serving divorce papers by publishing them in the local newspaper is sometimes allowed, but to take advantage of this provision, you must show you can't serve the divorce through any other means.