LEGAL GUIDE
Written by Avvo Staff | May 30, 2014

Getting a divorce from an international marriage

An international marriage is one of the more complicated marriages to dissolve. Use this guide to begin understanding jurisdiction and where to file for divorce, the validity of a foreign divorce, and possible issues that can arise.

Jurisdiction and residency: where to file and how

Many international divorce attorneys will check and see which area is the best one for you to file your divorce in.

For instance, one jurisdiction may offer better child support, while the other offers greater transparency. As an example, American courts call for full disclosure of financial matters and all other matters relevant to the divorce. However, in many civil law jurisdictions and European countries, full disclosure is not common. Parties are not expected to present all of the assets and financial facts to the courts. In fact, the spouse with the financial information may not even be fined for hiding funds.

Because of the vast differences between different divorce protocols in different countries, it is extremely important that you and your lawyer examine which country’s jurisdictions will be the most beneficial for your case. The jurisdiction you choose to file divorce under can have an enormous effect on the outcome of the divorce.

International certificate: validity of a foreign divorce in another country

If you choose to get divorced in another country, you need to make sure you divorce is valid. Each case is different, but generally speaking, if one of the spouses had a residence in the country where you obtained your divorce, and both parties had notice of the proceedings and the opportunity to attend, then the divorce should be recognized by the region the other spouse resides in.

However, if neither of you has a house in the foreign country in which you obtained your divorce, it may be deemed invalid.

Marriage and divorce are usually dealt with by individual states in the United States, and are not often governed by the Federal Government. Therefore, questions regarding the validity of your foreign divorce should be addressed to the office of the Attorney General in your state. Provide any and all legal counsel with copies of the foreign marriage certificate, your divorce papers and decree, and copies of foreign laws concerning divorce from the country in which you were divorced.

If you were divorced in the United States, you must check with the foreign laws of the country you reside in to ensure that your divorce is valid. As long as both parties had notice and opportunity, it will likely stand.

Alimony, child custody, and child abduction

There are many possible issues that can arise when getting a divorce from an international marriage, including alimony, child custody, and child abduction.

Alimony in an international divorce can be complex, but here are some general rules:

  • If both parties are United States tax payers, then alimony follows the standard procedure.

  • If the party receiving alimony lives in a different country, they will be taxed for 30% of the amount they received. Alimony counts as a United States sourced income. There are some treaties that can be used to get rid of the 30% tax.

  • The difficulties of the payee include complex tax forms, and the responsibility of withholding 30% of the amount paid in alimony.

  • Because you have to follow the laws governing international money, it is wise to hire an international alimony specialist or accountant to help you stay out of legal trouble.

Child custody is a large part of an international divorce, and like alimony follows some general rules:

  • If one of the parents decides to live in a country separate from another, the other parent can prevent the parent from moving if they choose.

  • You also need the consent of both parents for the child to get a passport, unless one parent has sole custody. This can be a huge obstacle to the parent trying to move to another country.

  • If the parent not moving challenges the other because of visitation rights, it can be almost impossible to move your child out of the country.

  • Getting an International Family Law attorney is your best way to protect yourself and your children and make sure you are not charged with abducting them.

Possibly the most frightening aspects of an international divorce is the possibility of child abduction, because if one of the parents takes the child to a different country, it can be very difficult to retrieve the child. However, special laws exist to address this situation:

  • The Hague Convention of the Civil Aspects of International Child Abduction is a powerful treaty that can help you get your child back.

  • It can be applied if both the country in which you reside and the country the child was taken to abide by the convention, the child is under 16 years of age, and the abduction of the child is a breach of any custody agreement.

  • Examples of countries that follow the convention are Mexico, Canada, and most of Western Europe. The rules of the convention are very useful in getting children returned to their place of main residence.

In the case of an international divorce, it is very wise to hire an attorney experienced in international family law. There is so much to consider, and so much at stake, that it is vital to hire an attorney before you even file in order to ensure that you file in the best possible country and jurisdiction for your case.

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