How to File for Divorce While Living Abroad

It's wise to seek legal counsel when your divorce involves one or both spouses living overseas.

By , Attorney · UC Berkeley School of Law
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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 can be complex, and no two countries' laws are the same. To ensure your divorce is valid, it's best to consult with a lawyer who regularly handles divorces in the country you or your spouse are living in.

When the Filing Spouse Lives Overseas

To successfully file for a divorce in a country other than the United States, you'll need to:

  • follow the country's requirements for a valid divorce, and
  • ensure that any divorce decree issued in the foreign country will be recognized within the United States.

You'll also need to make sure that you finalize all other matters related to divorce, such as property division, alimony, child support, and child custody.

Following Local Law When Getting a Foreign Divorce

Each country has its own procedures and customs for getting a divorce within its borders. For example, many countries require at least one of the spouses to be "domiciled"—officially residing—within their borders, while others require both spouses to be residents. And in some countries, divorce might require more than just a judicial or administrative procedure: The process might be intertwined with a particular religion, meaning that you'll have to abide by certain religious practices or customs to get a valid divorce.

A local attorney who regularly advises clients in divorces can help you navigate the system. If possible, find a lawyer who has handled divorces for people married in the U.S. A good source for attorney referrals might be the U.S. embassy or consulate in your area.

Many foreign courts will also require that you submit an authenticated copy of your marriage certificate or other proof of marriage. "Authenticated" usually means that the document has a stamp or signature on it certifying that it's a true and accurate copy. You can ask the court what it requires to authenticate a document. You might also have to provide a translated copy of the certificate if English isn't the country's primary language.

Will the United States Recognize a Foreign Divorce Decree?

Most of the time, a valid divorce obtained in a foreign country will be effective in the U.S. However, it's important to note that there is no treaty or international agreement requiring the U.S. to recognize foreign divorces. Instead, divorce in the U.S. is a matter of state law, meaning that each state's laws dictate whether the state will recognize a foreign divorce decree. (Sosna v. Iowa, 419 U.S. 393 (1975).)

Similarly, no state is required to recognize a foreign divorce. Instead, a legal principle called "comity" allows the states to recognize foreign divorces when permitted by state law and considerations such as the convenience of the parties. (Hilton v. Guyot, 159 U.S. 113 (1895).)

Each state's law is different, but states generally will recognize a foreign divorce decree when:

  • both spouses were aware of the divorce case in the foreign country
  • the divorce procedure in the foreign country gave each spouse the opportunity to participate in the divorce proceedings and hearings, and
  • at least one of the spouses was domiciled in the foreign country that issued the divorce decree.

States often require that one of the spouses be domiciled in the other country to prevent couples from using a foreign divorce to skirt the state's divorce laws. For example, a couple who tries to get around a state's separation requirement by getting a "quickie" divorce while on vacation in Mexico will likely find that their divorce isn't recognized by their home state.

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.

Finalizing Other Matters Related to Divorce

When a couple divorces in the U.S., the court makes orders about all the issues in the divorce, including property division, alimony, child support, and child custody. On the other hand, many foreign divorce decrees don't address these issues.

Even if your foreign decree does address these issues, a U.S. court is under no obligation to recognize the foreign court's decisions. Although U.S. courts will usually acknowledge termination of a marriage through a foreign divorce decree, it's far less likely that a U.S. court will adhere to other decisions made by the foreign court.

For example, if your children are U.S. citizens residing in the U.S., and you file for divorce while living abroad, the foreign court likely won't have jurisdiction (authority) to issue orders regarding custody of your children. Instead, you'll need to petition for a child custody order from a U.S. court that has the power to decide custody (probably the local court in the state where the children live).

If you live abroad and you're in a situation where you have significant assets, children, or other issues to decide beyond simply terminating your marriage, it's a good idea to contact U.S. attorney—preferably one in the state that you last lived in or where you plan to move back to—to discuss how to best protect your interests.

When the Filing Spouse Lives in the United States

If you are living in the U.S. and want to file for divorce from a spouse who's left the country, many of the procedural details of the divorce will be the same as if you were divorcing someone who lived locally. There is one huge potential exception, though: Notifying your spouse of the divorce might require extra steps.

The first step in all U.S. divorces is to file a petition (paperwork) for divorce in your local court. The court will not accept your case for processing unless you meet local and state divorce residency requirements.

Once the paperwork is filed, you'll need to make sure that your spouse personally receives notice of the divorce by delivering to them a copy of the divorce petition, summons, and any other documents you filed with the court. This is called "serving" your spouse, and can be complicated when your spouse lives in another country.

Service Through Waiver

The easiest way to accomplish service is to have your spouse waive personal service. This means that your spouse agrees to sign an affidavit stating that they have received all the paperwork. You then file the affidavit with the court, and your divorce can move into the next phase.

How to Serve Your Spouse Internationally

Service becomes more complicated if your spouse refuses to waive service of process or tries to avoid service. Most states require you to serve someone out of the country in a manner that complies with the other country's laws. For example, Colorado requires you to serve the person via any means agreed upon by the countries, the law of the foreign country, or as directed by the foreign authority or court if not otherwise prohibited by international agreement. (Colo. R. Civ. Pro. Rule 4(d) (2023).)

The method for serving your spouse in another country depends on whether the U.S. and the other country are parties to a treaty—such as the Hague Service Convention, discussed below—or another agreement regarding international service. If the U.S. and the other country are parties to a treaty or agreement, you must follow the treaty's or agreement's procedures.

The two major service-related treaties that the U.S. is a party to are the Hague Service Convention and the Additional Protocol to the Inter-American Convention on Letters Rogatory ("Inter-American Convention"). Click the links to find out if your spouse's country of residence is also a party.

Service Under the Hague Service Convention

If the country where your spouse lives is a member of the Hague Service Convention, you must use the procedures outlined under the treaty to serve your spouse. The U.S. Department of Justice's Office of International Judicial Assistance has published a detailed guide on how to serve documents abroad under the Hague Service Convention. You must use standardized forms to pursue service, and any licensed attorney in the U.S. can prepare and submit the forms to the appropriate foreign authority.

Service Under the Inter-American Convention

Service to countries that are parties to the Inter-American Convention requires an additional step. Like service under the Hague Service Convention, any licensed attorney in the U.S. can prepare and submit the forms. Unlike service under the Hague Service Convention, though, a request for service under the Inter-American Convention must be signed and sealed by the court where the divorce is pending and by a central U.S. authority who acts through a contractor called ABC Legal.

Service in Other Countries

In countries that aren't party to the Hague Service Convention, the Inter-American Convention, or another agreement with the U.S., you'll have to serve your spouse by sending "letters rogatory" through diplomatic channels. A letter rogatory is essentially a request from a court in the U.S. to the court in the other country to do something—in your situation, to order service of documents on your spouse. Executing letters rogatory can take a long time—even a year or more—and there's no guarantee that the court in the other country will agree to assist you.

No matter whether the country where your spouse lives is a member of a treaty with the U.S., you can make the process go more smoothly by working with both an attorney here in the U.S. and an attorney in the foreign country who can make sure service is being handled correctly.

Sometimes, service in a foreign country simply isn't possible. For example, you might not have the correct address for your spouse, your spouse might be avoiding service, or authorities in the other country refuse to cooperate. In this situation, you will need to ask the U.S. court handling your divorce how to proceed.

Completing the Divorce

After your spouse has been served (or you've determined it's impossible to locate your spouse), the local state court will need to determine if it has jurisdiction to make orders that affect your spouse.

If your spouse has waived service, it usually means that they have also consented to jurisdiction, and the court will be free to make orders regarding issues such as property division and child custody.

Absent a waiver of service, the power the court has over your spouse depends on a variety of factors. A major consideration is the extent of your spouse's contacts with the state. State law sets guidelines on how courts determine the extent of their jurisdiction. Your attorney 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 overseas can be tricky—the U.S. military has its own codes and processes that govern divorce-related matters. For example, in most situations, only U.S. courts can divide military pension benefits. If you are a military spouse or are in the military, and one or both of you are outside the U.S., it's a good idea to contact a local Armed Forces Legal Assistance Office for help. You can also find a wealth of information about military divorce on the Military OneSource website.

Getting Help

If you are considering an international divorce, the best course of action is to consult with attorneys in both the foreign country and the U.S. Your attorneys can help you to ensure that the divorce will be recognized in the U.S. and that your rights are fully protected.

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