Divorcing While Abroad

Divorce occurs when one or both spouses seek to dissolve that marriage relationship. A divorce order from a court will legally terminate the marriage.

If you are an American civilian living abroad in another country, you can get divorced there, and your divorce will be recognized in the United States. Similarly, based on principles of reciprocity, a divorce judgment from a state court in the U.S. will usually be recognized in any foreign country with a similar judicial system.

For a foreign divorce to be recognized in the U.S., certain conditions must be met, including:

• Both parties to the divorce must have been given sufficient notice of the divorce proceedings; and
• One party was domiciled (living) in a foreign nation at the time of the divorce.

International divorce is complex. Questions regarding the validity of an overseas divorce or a U.S. divorce in another country should be discussed with a family law attorney in your area.

What if the Spouse Living in the Foreign Country Files for Divorce?

Any divorce filed abroad must be prosecuted per local law. For example, most couples in Germany must be separated for one or three years before they can obtain a divorce (the time difference is based on whether both parties or only one wants the divorce). To be valid in the United States, a divorce obtained in a foreign country must be valid in that country first, and if you are living in a foreign country, you must satisfy all of that country’s divorce laws.

As mentioned, if you are an American civilian living abroad in another country, you can get divorced in that country, with one exception: the Philippines is the remaining country where divorce is not allowed (except that people who are Muslim may divorce if it is per Islamic religious law).

If you live in the Philippines and want a divorce, you must return to the United States. By state law, you must live in a U.S. state for a specified period, usually six months, before you can file for divorce.

When divorcing in a foreign country, a couple may encounter various obstacles and difficulties regarding certain issues. These can include:

• Child Custody and Child Support Issues: While a foreign divorce decree may be able to terminate a couple’s “married” status, a foreign court might be reluctant to issue any orders regarding child custody or child support for the parties. The court might not have jurisdiction to make such orders or conclusions; even if it does, there is a chance that the U.S. court might not honor such determinations coming from a foreign court
• Division of Property: Similarly, a foreign court might be hesitant to issue any orders regarding the division of any property located in the United States. Again, jurisdictional issues may arise here, and a U.S. court might not honor the conclusions of a foreign court concerning property division in the divorce.

What if the Spouse Living in the U.S. Files for Divorce?

In situations where it is the spouse living in the U.S. who is filing for divorce, certain requirements need to be met. For instance, the following issues should be considered:

• Petitions: The spouse living in the U.S. must file the proper petitions (paperwork) for divorce in the local state court.
• Service of Process: According to the 5th and 6th Amendments of the U.S. Constitution, each party to a lawsuit must be fully notified of any legal actions that involve them. This procedure in which someone is informed of a pending case against them is known as service of process. Service of Process begins to get complicated if the spouse abroad attempts to avoid service.
  • Additional assistance from an attorney would be necessary in such situations. If the spouse living in the U.S. cannot find or contact the spouse abroad, usually they can complete the Service of Process by filing a notice in a legal newspaper containing the basic facts of the case (e.g., the name and location of the court, the type of action that it is, etc.) This method of service is designed to ensure that spouses who flee overseas cannot just ignore any notice of divorce and keep the other spouse in family court limbo. Ultimately, it is up to the U.S. court to decide if the Service of Process was legally completed with whatever method the plaintiff chose.
• Jurisdiction: For a state to hear any civil action (including divorce), it has the authority to do so. This authority is known as “jurisdiction,” and is usually determined by the state where one or both parties reside. If you file for divorce in one of the U.S. states, the state court will need to determine if it has jurisdiction over the spouse living abroad. This depends on various factors.
  • The state often asserts jurisdiction over the foreign spouse, even if that person has never taken a step in the U.S. However, the court will often withhold asserting jurisdiction over issues such as alimony, child custody, child support, and the division of property outside of the state unless the foreign spouse has minimal contact with the U.S.

Can I File for Divorce from Active Military Personnel Stationed Abroad?

You can file for divorce if your spouse serves active military duties abroad.

To protect service members from emotional, financial, and practical problems while on active duty, The Servicemember Civil Relief Act (SCRA) provides that military personnel are generally immune from civil actions (including actions for divorce) while on active duty. At the court’s discretion, they may also be immune for up to 60 days after their active duty service ends.

Can a servicemember slow down the divorce? The answer is yes. Generally, when one spouse serves a divorce petition on the other spouse, the responding spouse must file a formal response, or “answer,” within a specific number of days. Then, the court goes forward with scheduling the next steps in the divorce (such as hearings before the court or mediation).

However, the SCRA allows active-duty service members to request a “stay” (that is, to delay the proceedings) of a divorce if their duties prevent them from participating in or responding to the court action. The initial stay is for at least 90 days. The court can grant extensions after 90 days.

Do I Need a Lawyer’s Help to Divorce While One of Us is Living Abroad?

The process of obtaining a divorce may be complex, challenging, and emotionally charged. Laws regarding foreign divorce issues can be complicated. An experienced divorce lawyer will know how to navigate the legal process efficiently and will be there if you have any questions or concerns.

Meeting with an experienced divorce lawyer will help you understand your legal options and rights. A lawyer can also represent you in court during important hearings and meetings.