Though most Americans don’t know a couple engaged in an international family law case, the incidence of these cases is increasing. Globalization of the worldwide business community is an obvious explanation, along with the increased international travel and international relationships that come with it. But international marriages and the families they produce have unique challenges stemming from the cultural differences and financial complications couples living in two countries grapple with.
While some sources claim couples with an international marriage are more likely to get divorced, other sources claim they’re less likely. Safe to say both sides would agree that international marriage and international family law is, at the very least, more complex even if only geographically. These marriages, after all, put the ‘long’ in long distance relationships.
Amy Laughlin, Founder and Managing Partner of Laughlin Legal Divorce & Family Law Group in the Bay Area, has handled complex international family law matters for clients from over 30 different countries and diverse jurisdictions. Here are Ms. Laughlin’s answers to some of the more common questions concerning international divorce.
Q What makes a divorce international? How do international divorce laws define it?
AMY LAUGHLIN So first of all, there are no international divorce laws, just as there are no federal divorce laws; there are the divorce laws of each jurisdiction. So for example, say you have a wife who lives in San Mateo, and a husband who lives in Florence, Italy. I get a lot of these cases. So either of them could have jurisdiction, provided they’ve lived there for a certain period of time. That’s where the proverbial race to the courthouse comes in. In a recent case, the wife filed in San Mateo and served her husband in Italy. The husband is like, ‘No way I’m getting divorced in San Mateo! I’m going to file here in Florence. Who’s going to stop me?’ So he runs to the courthouse in Florence one day later and the divorce proceeds in San Mateo because the husband doesn’t realize that who files first and serves first can be a significant factor in determining jurisdiction.
Q Do all states uniformly determine the international divorce jurisdiction or do criteria differ by state?
AMY LAUGHLIN Criteria do vary because states do not uniformly determine jurisdiction. Uniform laws, drafted by the Uniform Law Commission, endeavor to promote uniformity across jurisdictions. But even when a state legislature adopts a uniform law, they customize it to their unique population.
The primary elements that vary in divorce law from jurisdiction to jurisdiction are:
- The minimum required length of residency in order to get divorced
- What the grounds for divorce are, i.e. no fault vs. fault-based
- How assets are divided, i.e. community property vs. equitable distribution
- Whether the state recognizes a divorce decree issued in another country as legally valid and will enforce the orders of that divorce
Q What are the divorce jurisdiction rules in California governing international divorce?
AMY LAUGHLIN In California, the basic rules governing international divorce are:
- At least one spouse has to satisfy the residency requirement of six months in state and three months in one California county
- At least one spouse must satisfy California’s residency requirements; currently 6 months in the state and 3 months in the county where the petition is filed
- Where the divorce petition is filed first and the other spouse is served first can be a critical factor in determining jurisdiction
- Community property laws apply to asset division if a California court has jurisdiction
- California courts will often recognize foreign divorce judgments under principles of comity if the foreign proceedings afforded due process and recognition would not violate California public policy
- Child custody prioritizes the child’s ‘home state’ or where the child has lived for the preceding six months consecutively
Q As an international divorce lawyer who’s handled many international divorces, was there ever an outcome that would never happen in the US?
AMY LAUGHLIN Yes, and it was a fascinating case. I represented a physician. He and his wife were both from Pakistan and were married there. Although the couple lived together in California for many years, the wife traveled to Pakistan to visit relatives.
While she was there, the husband also traveled to Pakistan and initiated divorce proceedings under Pakistani law. He then completed the legal process required there, which is much more informal than here in California.
Meanwhile, the wife returned to California and filed her own divorce petition, arguing that the California court—not the Pakistani court—should determine the parties’ rights. The California court ultimately recognized that the marriage had already been dissolved under Pakistani law, but it retained jurisdiction over the parties’ California assets because those issues had not been decided in Pakistan. It was an excellent example of how different countries can exercise jurisdiction over different aspects of the same case.
Q What is a cross border divorce and how does California determine cross border divorce jurisdiction?
AMY LAUGHLIN A cross border divorce is your typical international divorce where the spouses have connections to different countries whether it’s citizenship or property or a business. And California doesn’t determine the jurisdiction. A number of considerations like citizenship, where the spouses live and work, where their permanent legal home is, and which spouse files and serves the other first will determine jurisdiction.
And something that might surprise you about a cross border divorce is that judges in different countries, different jurisdictions may communicate directly regarding jurisdictional issues—particularly in international child custody matters where permitted by law—to determine which court should hear the dispute. However they’re neutrals, they’re unbiased. And their only stake in a case is upholding the law. They are not negotiating the parties’ property division or other substantive issues.