Divorce is complex enough when you and your spouse are in the same country. When you are in different countries, things can get even more complicated.
According to the American Journal of Family Law, the first thing to know before discussing international jurisdiction is that there are two kinds of jurisdiction, and a court must have both to be able to hear a case.
Types of Jurisdiction
The first kind of jurisdiction is subject matter jurisdiction, which is a court's power to hear a certain case. The second kind is personal jurisdiction, which is the power of the court to make a binding decision for a person. The Journal explains that with many countries, the courts will have subject matter jurisdiction over a divorce if the spouses meet certain residency requirements as defined by the country's laws. Some countries, however, do not have residency requirements, but instead require another connection to the country to assert jurisdiction, such as the marriage having occurred there, or that the couple resided in the country at the time of the marriage.
Personal Jurisdiction in the United States
A country may have different rules for how to obtain personal jurisdiction, but in the United States, a court has personal jurisdiction if a person lives in the United States, if a person is served there, or if a person consents to the court having jurisdiction. If none of those situations applies, according to the Journal, a court may still have personal jurisdiction if there is a close enough connection between the spouse, the court, and the subject matter of the lawsuit that it is reasonable for the court to have jurisdiction over the person and the case. For example, if a husband and wife live in separate states due to their jobs, a court in the wife's state may still find that it has jurisdiction over the husband due to the fact that he and the marriage have a significant relationship with the wife's state of residence.
Which Court Rules?
Of course, with today's global society, more than one country may qualify as having jurisdiction over a divorce. The American Journal of Family Law notes that in America, the first court with jurisdiction that issues a ruling is the court that decides the divorce. In the European Union, the first jurisdiction in which the divorce is filed is the jurisdiction that will hear the divorce case. If more than one country has jurisdiction, it's wise to consult with a lawyer to pick the country with the laws most favorable to you.
Asset and Debt Division
If you have property in several countries, asset and debt division can become very tricky. If you end up divorcing in America, the American court will value your international property to factor it into your asset and debt division. However, The Ward Law Firm notes this valuation must take into account the laws and taxes of the country that the property is in.
Once the American court has valued that property according to the rules of the country in which it is kept, LaMantia continues, the asset can be divided according to the rules of the state whose court is performing the divorce. Whether the court divides the property equitably or fifty-fifty depends on whether the state is a community or equitable property state.
However, LaMantia notes that even when an asset is assigned to a particular spouse, if the asset is international, it can be difficult to enforce this ruling. Many countries won't enforce an international divorce order, so any required property transfers won't be completed unless both spouses do the necessary paperwork.
Alimony, or spousal maintenance, decisions depend on which country the divorce takes place in. If the divorce occurs in America, the state laws and the individual judge will determine the amount of alimony granted, if any. If the spouse who is awarded alimony lives in another country, he will still have to pay American income tax on said alimony unless exempt by a treaty. If the spouse who is required to pay alimony lives in another country and decides to stop paying, enforcing the court order can be tricky as you would either have to attempt to have that spouse's country enforce the order, or physically get the spouse into the United States to enforce the order here.
Child custody is one of the most complicated issues in international divorces. According to the Uniform Child Custody and Jurisdiction Act (UCCJA), if a custody case is separate from a divorce case, the court that has jurisdiction over child custody is the child's "home state" - either where the child has lived for six months or the place with the most significant connections to the child. The home state, however, can be a state in the United States or an international territory. That is, if the child has lived in England for several years, an American court may find that the child's home state is England and so English courts should determine custody.
If an American state has jurisdiction, it will decide custody based on the best interests of the child. The factors involved in reaching that decision include the child's wishes, the parents' wishes, siblings, other important relationships, school, and the health of all parties involved, among other things.
In international cases, there is a high risk of child abduction in violation of the custody order. To determine a way to handle these situations, there was the 1980 Hague Convention.
The Hague Convention
The Hague Convention is a treaty that was developed to help resolve issues of international child abduction. The treaty specifies procedures to promptly return any child who is abducted internationally. However, this treaty only applies to the countries who have signed it (and many countries such as Japan, Pakistan, Saudi Arabia, etc., have not signed it). If the child has been taken to a country that is a member of the Hague Convention, you can contact that country's Central Authority to enforce any order of child custody. Unfortunately, some countries, such as Mexico, are considered noncompliant even though they have joined the Hague Convention because they do not routinely enforce the treaty. When one parent lives in a country that is not a member of the Convention, or is noncompliant with the Convention, it may be best to draft a custody agreement that does not permit the child to visit that country at all.
The court that handles the divorce and custody will also determine child support. Usually, the non-custodial parent pays child support to the custodial parent, or, if both parents share custody, the parent with higher income may have to pay child support to the parent with lower income. Each state has methods for determining who pays child support and how much he has to pay.
International Child Support Treaties
Notably, in 1989, there was the United Nations Convention on the Rights of the Child, which issued a treaty declaring that a child's adequate standard of living and the providing of such is the responsibility of both parents. It also states that courts must make decisions in the best interests of children. Almost every member of the United Nations ratified this treaty except for the United States.
Additionally, in 2007, there was a Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance that led to a treaty signed by several countries to help ensure the enforcement of international child support and alimony orders. However, this treaty has only been joined by five parties and the United States was not one of them.
US Office of Child Support Enforcement
It may seem like it would be impossible to make a parent pay child support from another country, but fortunately there is the Office of Child Support Enforcement that assists parents with enforcing child support orders when a parent lives in a different country. This office has an agreement with 26 other countries to help enforce support orders in international divorces.
Since the world of international divorce can be such a labyrinth of different countries' laws and customs, it is best to consult a lawyer familiar with these cases to help plan your divorce long before you file. You will need to consider all the applicable countries' laws about issues such as prenuptial agreements, child custody, spousal and child support, and property division, so that you can determine the best place for you to file your divorce and any steps you could take before filing that will potentially make the divorce process easier.