Family Law

Getting a Divorce in a Foreign Country

By Amy Castillo, J.D., University of Minnesota School of Law
The rules change when foreign laws and processes come into play. Whether you're divorcing in America and trying to get a foreign court to uphold and enforce your American divorce decree, or whether you're divorcing abroad and want an American court to validate your foreign divorce decree, there are certain rules and principles you'll need to consider.

Getting a divorce is daunting. It can be a painful and emotional process that saps time and money from two spouses and multiplies their feelings of anger and betrayal. But if that wasn’t hard enough, imagine divorcing in another country, a place where you aren’t as familiar with the laws and procedures of the official court system. What can you expect if you’re divorcing somewhere other than the United States?

Do I Need a Foreign Lawyer?

Yes! Getting divorced in the U.S. is confusing enough, and the confusion and potential for mistakes is compounded when divorcing abroad. The laws in various countries can differ greatly from the U.S.— in some countries, you may be required to obtain a local lawyer to process a divorce. But even if it's not a requirement, hiring an attorney from the foreign country where you plan to file for divorce is a good idea—this can help safeguard your interests and assist you in making sure you follow all the rules applicable to divorce proceedings in another nation.

If I Was Married in Another Country, Can I Divorce in the U.S.?

Yes. You can divorce in an American state even if you were married abroad. However, you can’t file for divorce until you fulfill your current state’s residency requirements, meaning that you have to live within that state for a period of time prescribed by the state’s divorce laws.

After I’m Divorced, Will My Foreign Divorce Decree Be Recognized in America?

According to the U.S. State Department, American courts may recognize a divorce decree (meaning, a final order of divorce) from a foreign country if both of the following conditions are met:

  • Both spouses had notice of the foreign divorce proceedings. If one of the spouses was living in the U.S. at the time the divorce action was filed, that spouse must have received service of process (meaning, timely deliver of the divorce documents).
  • Both spouses were given an opportunity to be heard in the foreign divorce proceedings, whether by appearing personally or through a local agent or attorney.

Beyond those two prerequisites, it is for each state to decide whether it will recognize a final divorce decree from another country. This is because divorce law is not federal, but rather a matter left to the discretion of each American state. States will consider various factors when they decide whether to recognize a foreign divorce decree, including:

  • If at least one spouse was living in the foreign country during the divorce proceedings, a state is more likely to recognize the foreign divorce decree. If neither spouse was living in the foreign country, a state is less likely to recognize it. You must check with your state's laws to determine whether residence of at least one spouse in the foreign country is required.
  • If the spouse who is the defendant, or respondent, in the divorce case received timely notice of the court proceedings, a state is more likely to recognize the foreign divorce.
  • If a foreign divorce decree violates the state’s public policy, then it is unlikely to be enforced. For example, if a foreign divorce decree didn’t require the non-custodial parent to pay child support to the custodial parent, it might not be recognized in U.S. courts.

If you're concerned that your state may not recognize your foreign divorce, contact your state’s Attorney General for guidance or, if necessary, hire a private, experienced family law attorney from your area.

If I Divorce in the U.S. and Try to Enforce the Decree Overseas, What Do I Need to Know?

Under these circumstances, the main question is whether your U.S. divorce will be recognized in a foreign country. Again according to the State Department, your U.S. divorce decree will be recognized in foreign countries that have a secular justice system. By contrast, your U.S. divorce decree might not be recognized by countries that have a non-secular, or religious, justice system.

The best thing to do to find out whether your divorce will be recognized or enforced in a foreign country is to contact an attorney in that country. An experienced lawyer in your foreign country should be able to advise you whether your divorce will be recognized in the courts there. You can contact your embassy to obtain a list of attorneys.

What Documents Do I Need?

Each country will have it's own specific requirements regarding the specific documents you'll need to fill out and/or file in order to obtain a divorce decree. If you need to have your foreign divorce enforced or recognized in a U.S. court, you’ll need certified, authenticated copies of your foreign marriage certificate (if you were married abroad) and your foreign divorce decree. Your embassy can assist you with obtaining a copy of the marriage certificate.

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