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Is a children custody agreement between spouses made outside the U.S. during marriage bounding in USA in case of divorce?

Flushing, NY |

Me and my spouse were married outside the U.S. a few years ago. We have small children. My spouse is a citizen of another country. The country of spouse's citizenship is the country of our marriage. Also, my spouse recently became a permanent resident of the U.S.. In a few weeks we planning to visit a country of my spouse citizenship (that is the country of our marriage). Our relationship is not perfect. If we decide to enter into agreement regarding custody of children in case of divorce, will that agreement be bounding even if it is executed outside the U.S.? What are basic requirements for such agreement made outside the U.S.? I prefer to execute such agreement outside the U.S. because outside the U.S. my spouse is usually more cooperating.

Attorney Answers 5


  1. Where the agreement is executed is not particularly important. What it says and how it is witnessed are important.

    You should consult an attorney prior to entering into any such agreement, both because you will want the agreement to be valid and to protect your position with regard to issues such as child support.

    Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer could be considered attorney advertising.


  2. It is best to have an agreement drafted by experienced lawyers where you live, than an agreement from out of the country. If you both reside here, then NY has jurisdiction over you. If the children are here for more than 6 months, than NY has jurisdiction over the children. An out of the country agreement may be valid, however it is not necessarily likely that lawyers from another country will know the requirements for an agreement to be valid here. If you are thinking about a divorce, then you would probably want the agreement to be prepared by NY lawyers.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.


  3. There is no definitive answer to your question. The order may or may not be accepted by the court which presides over the divorce. It would certainly carry more weight if you went to family court and had an order signed by a family court judge. You also need to consider visitation and child support. Good luck.

    I have been a criminal attorney in New York for almost 25 years. website: Brooklynlaw.net Phone #: 718-208-6094 email: howard@brooklynlaw.net. This answer is only for informational purposes and is not meant as legal advice.


  4. I agree with the other lawyers. I'd also note that generally if you want a contract enforced here in the US you need to be careful how it is witnessed in another country. You could always have an agreement so ordered by a judge here in New York. You should consult with a lawyer too about the ramifications of residency and the Hague Convention. Good luck.


  5. The other attorneys all raise good points. If you have an agreement notarized in a foreign country, and it is challenged as to authenticity here, you will have to get an apostille as part of the litigation, which is very inconvenient.

    If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice which requires all the details, nor creates an attorney client relationship.

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