A Q&A about how to file for divorce while living abroad with Amy Laughlin.
International divorce or divorce involving spouses who live in different jurisdictions is becoming increasingly common, particularly in states like California which attracts residents from around the globe. And yet, few people seem to have a clear understanding of what that means.
Amy Laughlin is the Founder and Managing Partner of Laughlin Legal Divorce & Family Law Group, and a divorce attorney with a great deal of experience handling international divorces. What exactly does that mean? It means that Ms. Laughlin has handled complex family law matters for international clients from over 30 different countries. Excerpted from a recent conversation, here are Ms. Laughlin’s answers to a number of common questions on the subject of cross border divorce.
Q Is filing for divorce while living abroad all that different from filing for divorce in the US?
In some ways, but not overall. Regardless of where you’re living, you generally want to file where you consider home. So if you’re living abroad temporarily, say, you went to Oxford, England for 6 months, you wouldn’t file there, you would file here in California or wherever you call home. And wherever you call home can be contentious.
Let’s say you try to file in California though everybody knows you’re a resident of England. But if your partner lives here, that will work because it only takes one spouse living here to file for divorce here.
If you have a legal basis (e.g. you are a resident of England and your spouse is a resident of the US), determining where to file may come down to which jurisdiction is most advantageous to you. This is something you’d discuss with your attorney to strategize your best outcome.
Q What are the steps you need to take to file for divorce while living abroad?
So, back to our example, your husband is a resident of the US and you are a resident of England. The first thing you have to do is consult with an attorney experienced in international divorces to determine where you should file. That decision will take into account things like: where you or your spouse meet the residency requirements and which jurisdiction might be most advantageous to you with regard to support and asset division. Most jurisdictions require one of the spouses to have lived there for a certain period of time. Other considerations include where your assets are located, where your business is registered, and what it will cost to divorce overseas. A huge consideration is whether the other country recognizes or enforces orders from another jurisdiction.
A very important consideration is where do the children call home, and where they have lived for the past 6 months. Sometimes the children’s home state trumps everything else in a child custody matter. As can a prenup, by the way. Some couples agree to a divorce jurisdiction in their prenuptial agreement.
In my experience, few jurisdictions are more even-handed than California. California builds in a lot of protections for both spouses.
Meeting with your attorney to talk about jurisdiction is something you want to do immediately or you risk losing the opportunity to file wherever is best for you. And I say that because there’s often what’s referred to as a ‘race to the courthouse’ meaning your spouse may beat you to it and file in the jurisdiction where they will get the best outcome. Whoever wins that race by being the first spouse to file for divorce and serve the other spouse generally determines the jurisdiction.
Q You’ve said before there is no international divorce process in the USA. What did you mean by that?
There isn’t such a thing as international divorce law. The laws governing your divorce will be determined by the jurisdiction in which you file. In California, the jurisdiction is determined by the county in which you file. Internationally, some countries also have local and regional jurisdictions, while others operate on one centralized national legal system.
Q Should you get a divorce while living in another country? Is that a good or bad idea?
It depends upon what the laws are and how they favor you. For instance, there are countries that don’t provide for spousal support under any circumstances. And make no mistake, the concept of community property is not universal whereas in California, anything and everything acquired during marriage is presumed community property. Some countries favor men holding property. Some countries exclusively grant mothers custody if the parents are unmarried! That’s true in Sweden as well as the Philippines. I have a client whose child was abducted to the Philippines for that reason.
Q Is filing for divorce in the US from abroad legally viable?
Yes, as long as either you or your spouse meets the residency requirements of the jurisdiction in which you file. In California, there are two requirements – at least one spouse must have been a resident in the state for a minimum of 6 months directly prior to filing, and of the county in which you file for at least 3 months prior to filing.
Q Is it essential to hire an international divorce lawyer to file for divorce while living abroad?
Again, just as there isn’t international divorce law, there aren’t international divorce lawyers. It is important, however, to hire a divorce lawyer who is schooled in international law and principles, someone very experienced in international divorce.
Speaking for myself, I love these cases. They’re fun. California is a cosmopolitan state. People from across the globe come here, make a home here, and fall in love here. And sometimes their marriage doesn’t work out.
Generally someone comes to me because their husband has filed in another jurisdiction, or they don’t know which jurisdiction is appropriate, and I love studying the various legal systems and determining which is most advantageous for my client.
Q When you don’t know someone to ask for a reference, how can you choose between one international family lawyer and another?
Just as there isn’t international family law, there aren’t international family lawyers. Choosing a family lawyer to handle an international divorce isn’t all that different from choosing a family lawyer to handle a domestic divorce. Make sure you interview at least a few candidates and prepare questions to help you compare one with another. Several questions I advise people seeking a divorce of any nature to ask include:
Do you feel that you have time for my case?How long should I expect it to take for me to hear back from you on average?Is there a strategy you use when you head into a new case?What would be your plan for my case?
Then in addition, you should ask each one what their experience is handling international divorces. If you’re an ultra high net worth individual, you might want to also ask about their skill and experience in handling financially complex international cases.
Finally, after you’ve interviewed each of them, ask yourself a few questions. Which one was most attentive? Which one made you feel most listened to? Which one was most respectful? Did you feel rushed? Did you feel prioritized? Your best choice of divorce attorney can be found in the answers to those questions.
Q What can you do in advance of filing to protect yourself and make your international asset division in divorce go smoothly?
I advise anyone seeking a divorce to immediately gather current information about all their assets – both domestic and international – including bank accounts, investment accounts, retirement accounts, trust accounts, life insurance policies. In addition, make copies of important documents like your marriage certificate, your prenuptial or postnuptial agreement, both personal and business tax returns, car titles, property deeds, wills, etc. And be sure to notify your CPA that you’re preparing for a divorce. Let your broker and wealth manager know, too.
Q Do you offer international divorce legal advice in an initial consultation?
As we’ve already noted, there is no international divorce law. So legal advice on divorce will vary from country to country and jurisdiction to jurisdiction. In my practice, the fundamental purpose of a consultation is for the prospective client to be able to gather enough information to determine whether we’re a good fit for each other. There is little advice I can offer without learning much more about a new case.
What I can offer are details about how I practice, the kinds of successes I’ve had with cross border divorces, the number of foreign jurisdictions or countries I’ve engaged with, and what I think distinguishes me from other attorneys. For instance, one thing I do that’s fairly unique is I share my cell phone number with all my clients so they can reach me directly as needed in case of an emergency.
Is Laughlin Legal a good choice for international divorce legal advice?
Unquestionably. If you or someone you love is headed for an international divorce, learn more about how the services we offer can best represent you and your values. Call us now at 650.343.3486 to schedule a consultation with a Laughlin Legal divorce attorney. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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