Thousands of Americans (PDF) travel to foreign countries each year. Usually they're taking vacations or traveling for business. Sometimes, however, they travel to get quick divorces. Or, you or your spouse may be a citizen of another country, and one of you decides to file for divorce there instead of in the US.
Either way, this type of divorce may be valid in the foreign country, but it's not necessarily valid in the US. No matter which end of the divorce you're on, it's important to know how foreign divorces work.
Validity of Foreign Divorce in US
Generally, a divorce granted by a court in a foreign country is recognized as valid by US courts through comity. Comity is where the courts of one country respect and enforce another country's laws and judicial decisions. In most states, the courts will enforce a foreign divorce only if both spouses received adequate notice of the divorce proceeding, meaning:
- One spouse was living in the foreign country at the time of divorce, and
- The spouse living in the US received service of process - the formal delivery of legal notice of the divorce proceeding
Starting a Divorce When Your Spouse is Away
Many of those same rules apply when you're in the US and you want a divorce, but your spouse is living in a foreign country. The key again is making sure your spouse is given notice of your divorce action. The easiest way to do this is to mail the divorce papers to your spouse. However, not all foreign countries allow this.
It's a good idea to talk to a divorce or international law attorney for advice on how to make your divorce action work.
Four Types of Foreign Divorces
There are four different types of foreign divorces:
Ex parte divorces are based on the physical presence of the spouse that filed for divorce in the foreign country, with notice given to the spouse that is not present in the foreign country
Bilateral divorces are based on the physical presence of both spouses in the divorcing country, or the physical presence of the spouse who filed for divorce and the voluntary appearance by the other spouse through an attorney
Void divorces are ex parte divorces granted without notice to or service of process on the other spouse. No US court will enforce this type of divorce
Practical recognition divorces are when a spouse can't challenge the validity of a foreign divorce when the challenge would be unfair to the other spouse. For example, if your spouse starts a divorce action in a foreign country and you consent or agree to the foreign court's jurisdiction, you may not be able to challenge the divorce in a US court
Why Get a Foreign Divorce?
Quite often, 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.
Factors Courts Consider
States don't have any legal obligation to recognize foreign judgments of divorce. In determining whether a foreign divorce is valid and enforceable in the US, a state court will consider several factors, including:
Where the spouses live. Generally, if neither spouse was living in the foreign country when the court of the foreign country granted the divorce, then it won't be enforced. However, if either party was living in the foreign country, then a state court will normally recognize a foreign divorce.
Whether the defendant spouse received adequate notice. If a defendant spouse didn't receive adequate notice of the application for the foreign divorce and the hearing, then the court will not recognize the foreign judgment of divorce. However, if the defendant spouse receives timely notice, then the court is much more likely to recognize the foreign divorce.
Public policy. A foreign judgment of divorce will not be recognized 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.
Practically any divorce can get complicated, no matter how much the spouses try to work together. Things can only get more complicated when one spouse isn't in the US. 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.
Questions for Your Attorney
- Are foreign judgments of divorce valid in my state?
- Will a state court recognize a foreign court's judgment of child custody, alimony, child support or property division?
- Can we get divorced in the US if we were married overseas?