No part of divorce is simple, but international divorces have an extra layer of difficulties that you may have to work through. When a couple joins in marriage, they do not usually do so with expectations of a potential divorce, especially where one lives in an entirely different country. While no divorce is easy, an experienced attorney can reduce your stress on the legal side due to his or her ability to navigate the intricacies of an international divorce.
The first question to consider when dealing with an international divorce is which country (or U.S. state) has jurisdiction over the divorce. Typically, both the countries where a spouse resides will have the jurisdiction to declare the divorce. However, it may be advantageous to use the United States’ divorce proceeding rather than that of another country, regardless of where the parties were married because most countries recognize a divorce declared in the United States.
Typically, when one files for an international divorce, they are seeking an ex parte divorce. Don’t let the Latin or legal jargon intimidate you, ex parte simply means that the proceeding will be brought by one party and decided outside of the presence of the other party. The most common circumstance where an ex parte divorce decree occurs, is where the non-filing spouse is served with the summons but fails to respond or appear in court. Fortunately for the non-appearing party, ex parte divorce decrees cannot divide the assets of the parties without giving notice and an opportunity for the defendant to be heard.
The notice requirement in an international divorce may be tricky to accomplish if you are not familiar with service of process, but its importance cannot be understated. Service of process to persons residing in a foreign country can be affected in accordance with the Hague Convention only in signatory countries of the Hague Convention. In line with the Hague Convention’s intent, the United States’ courts will typically recognize the service of process that took place in the foreign country, if the service of process was valid under that foreign country’s service of process requirements.
Courts in the United States have alternative remedies to the service of process as well, regardless of whether of the foreign country’s status of signatory country or non-signatory country of the Hague Convention. In states like South Carolina, a party can petition the court to have an alternative means of service of process authorized. Courts in South Carolina have allowed service by mail, service by e-mail, and even service via Facebook.
The state in which the divorce is rendered has a substantial effect on whether or not the marital assets can be divided. Most courts decline to divide the marital assets without either both spouses present at the divorce proceeding or, alternatively, the assets being located within the jurisdiction. Generally, the same rules apply to issues of child custody and visitation. Courts decline to exercise authority on these matters without the presence of the both parties because family courts have a significant amount of discretion in how it decides the outcome each cause of action brought before it.
Similar treatment is given to child custody matters. For example, a family court in South Carolina will decline to decide child custody matters when the child or children are not present in the jurisdiction and when the other biological parent is not present at the proceeding.
Divorce might be the single most difficult time for a family, and how it plays out will have lasting effects. For this reason, it is extremely important to hire legal representation that is well versed in family and divorce law so that all paths forward navigating the divorce may be considered, and the best path can be chosen in order to steer your family towards the best direction so that the whole family may move forward with their lives.
At Henderson & Henderson, we are committed to seeing both sides come to a resolution that is in the best interest of you, your spouse, and, most importantly, your child. Please email Jennifer, our divorce law attorney or call 843.212.3188 to see if she can help guide you through this difficult process of an international divorce.