Although this article provides a basic overview of international divorce, we are by no means suggesting you should handle a foreign divorce on your own. Transnational divorce is a complex and a fairly new field of the law. You should speak with an experienced family law attorney who can guide you through this process and ensure your divorce is valid.
When the Filing Spouse Lives Overseas
Filing for a divorce while living abroad often presents complex legal questions. First of all, you may need to abide by local law in order to get a divorce. If so, you should contact the U.S. Embassy or Consulate in your area to obtain a list of local attorneys that can help you get the divorce process started.
Check the U.S. Department of State’s website for a list of all U.S. Embassies, Consulates and Diplomatic Missions and a link to their websites.
Will the United States recognize a foreign divorce decree?
The short answer is yes, but only to a certain extent and not in all circumstances. Most states recognize divorce decrees from foreign countries as long as the foreign country ensures certain procedural requirements have been met (such as proper notice to the parties). To find out if a foreign divorce decree is considered valid or is recognized in your state, contact your state’s Attorney General. You could also contact an experienced family law attorney in your area.
Although a United States court is likely to recognize a foreign divorce decree as having terminated your status of being “married,” foreign divorce orders may not be effective for dealing with all of the issues in your divorce. For example, if your children are U.S. citizens residing in the United States and you file for divorce while living abroad, the foreign court is not likely to issue orders regarding custody of the children, because it will not have jurisdiction (authority) to make child custody orders over U.S. citizens living in the United States. And, even if the foreign court issues orders that purport to deal with the custody of your minor children, a United States court is not required to honor such foreign custody orders. The United States court (the local state court) will have jurisdiction over the children and will issue its own custody orders.
Finally, a foreign divorce decree may not be effective to divide property, such as retirement benefits, located in the United States.
When the Filing Spouse Lives in the United States
If you are living in the United States and want to file for divorce from a spouse that’s living abroad, you’ll want to talk to an experienced attorney who can guide you through the process and make sure you are taking all necessary steps.
First, you’ll need to file a petition (paperwork) for divorce in your local court, and make sure you meet state and local residency requirements. You’ll also need to have a copy of the divorce petition and a summons “served” (meaning personally delivered) on your spouse, unless your spouse agrees to waive (forgo) the process requirements. If your spouse agrees to waive personal service of process, then he or she can sign an affidavit stating they have been served, and you can file that with the local court and move on to the next phase of the divorce.
If not, and your spouse insists on service of process or tries to avoid service, things will be more complicated. You may need to comply with the laws regarding service of process for the foreign country where your spouse lives. If the country where your spouse lives is a member of the Hague Service Convention, it will govern the international service of process. If not, you’ll have to figure out how service can be completed. In some countries, you may serve the summons by a letter request or “Letters Rogatory,” while in others you must have the paperwork served on a central government authority or an overseas agent who will then guarantee delivery of the papers on your spouse. In all cases, you’ll probably want to speak with an attorney here in the United States and an attorney in the foreign country who can make sure service is being handled correctly on that end.
Next, the local state court will need to determine if it has jurisdiction (authority) to make orders over your spouse. This will depend, at least in part, on the extent of your spouse’s contacts with the state. Whether or not the local state court can issue orders over your spouse in the divorce proceeding will also depend on a variety of other factors, including whether or not you seek orders regarding custody of the children or division of property. Your attorney(s) will need to perform a careful analysis of the facts of your case and the laws regarding your spouse's country of residence.
Overseas Divorce in the Military
The divorce process for U.S. military spouses can be a bit trickier than civilian matters, as the U.S. military has its own codes and processes that govern divorce-related matters. In this situation, you should consult a lawyer with experience in military divorce to ensure that the filing, processing, and serving of divorce papers are all handled correctly.
No matter the circumstances or details, civilian or military, if you are considering divorcing someone who is not in your home country you should always discuss your options with an attorney. Your attorney can help you to ensure that the divorce is valid and that your rights are fully protected.