Divorce can get complicated when international laws come into play. Maybe you were married in New York but then moved with your spouse to another country or were married abroad and want to come back to the U.S. If you have children and one of you wants to relocate post-divorce, there may be other concerns. One or both of you may also have assets in different countries that have to be disclosed and divided. While it’s impossible to say what specific problems may arise in your divorce, there are important issues you should know about in an international divorce.
Jurisdiction Over the Divorce
If you got married in New York but you’re living outside the state and seeking divorce, New York may not have jurisdiction over your divorce, meaning that it may not have the authority to decide the case. Generally, the court in the location where you are permanently residing has jurisdiction over the divorce because that is where the marriage resides. However, if you have a prenuptial or postnuptial agreement that says New York has jurisdiction regardless of where the parties reside, then you can file for divorce in New York because the forum selection clause in the agreement contractually reserves the right to have your divorce heard in New York.
Jurisdiction Over Child Custody Matters
Even if a court has jurisdiction over the divorce, it doesn’t mean it has jurisdiction over custody matters. Jurisdiction depends on where the child resides even if a prenuptial or postnuptial agreement provides that New York has jurisdiction. As a result, your divorce may be decided in one court and custody in another causing you to need an attorney in both locations.
Note that if a parent abducts the child to another country or refuses to return the child to the U.S. after a trip to another country, the Hague Convention on the Civil Aspects of International Child Abduction may apply to help secure the child’s return. However, not all countries are signatories to this treaty.
Assets in Other Countries
Marital assets are subject to equitable distribution even if they are in another country. However, it may be difficult to obtain information about foreign assets if your spouse tries to hide assets. You may need to hire local counsel and go through that country’s procedures to obtain information to the extent that is possible. Some countries make this easier than others.
If transfers were made from a U.S. account to a foreign account, you should be able to use the U.S. account’s financial statements as evidence of the existence of those hidden funds to obtain a 50-cent on-the-dollar credit against any U.S. assets in the final property settlement.
Relocating After Divorce
A spouse who lived in one country during marriage may decide to return to his or her home country after divorce which can present problems. A divorce agreement in one country may not be enforceable in another one. If you anticipate moving, you should inform your lawyer because you will want to consult an attorney in the jurisdiction where you will be living after the divorce. The attorney in that jurisdiction can advise whether the terms of the divorce agreement can be enforced there. Doing this before you finalize your divorce agreement can help you avoid problems later.
If you have children, you and your spouse must agree on custody or go to court. Courts utilize a best interests of the child standard in deciding custody. If you have a custody agreement and the custodial parent wants to later relocate with the child, the court must approve the move unless you consent. The judge will make a decision based on whether relocation is in the child’s best interests.
If you are considering divorce, contact us for a consultation to learn how we can help protect your rights and get the best result in your case.
