Guide to Divorce When One or Both Spouses Live Outside the U.S.
When getting a divorce, it's important to understand the legal system that governs your situation. For couples pursuing international divorce, this requires some specific knowledge.
How do you get an international divorce?
To get an international divorce, you must follow the divorce laws where you live or where your spouse lives – whichever country you choose to petition for divorce in – while keeping in mind that service of process laws still need to be followed based on each country’s laws.
The first step is to determine whether you meet the residency requirements for divorce. In most cases, you must have resided in the country where you’re divorcing for a certain period of time before you can file.
Note that in the U.S., you may qualify for a domestic divorce. Every state has its own residency requirements: some states require both spouses to reside in the state to file for divorce, but most allow just one spouse to meet the residency requirements before filing. The length of the requirement varies from one month living in a state to one full year living there.
Given this information, if you are a U.S. citizen, it may be easier for you to file for divorce in your home state. Note, however, that your international spouse must be adequately notified of all divorce proceedings. This could delay your divorce and make it more costly.
You'll also need to make sure you have the correct paperwork. The foreign country where your spouse lives (or where you live) may pose its own paperwork requirements, so do your research ahead of time. You might need a certificate of marriage or divorce from your home country as well as documents like birth certificates and proof of residency.
What are the most important things to know about international divorce?
Here are some of the most important areas of law to understand when dealing with international divorce:
- Residency requirements: Every state and country imposes its own residency requirements on divorcing spouses. Learn the specific requirements where your spouse lives in order to file for divorce, if you intend to file for divorce there.
- Spousal support: In most cases, spousal support depends on the laws of the country or state as well as your circumstances. Research these laws for the country or state you’re living in.
- Division of property: The laws regarding the division of property vary by country and can be quite complex. Researching the laws in your area is key, as it may determine whether certain items must be divided equitably or not.
- Child custody: Laws regarding child custody also vary by country and can be complex. Research the laws specific to the country or state where you live as well as any international treaties that could affect your case. Note that it can be challenging to enforce foreign child custody, child support, and spousal support orders, so you may have to redo that process in your home state.
- Divorce grounds: Some countries may require you to state the reason for the divorce. In the U.S., you can file a no-fault divorce, but other countries may be different. For example, you might be required to describe why your marriage is ending, whether the reason is adultery, dishonesty, or some other approved reason.
How do you file for divorce if you’re in the U.S. and your spouse is overseas?
Serve the petition
The first step is to serve the petition on your spouse. This can be done by mailing it to them or having someone hand it to them in person. If you are unable to find your spouse, you can satisfy the service requirement by publishing information about your petition in a local newspaper. Make sure you're following the service of process laws of the country in which your spouse resides, or the court may reject the service.
File papers with the court
Once the petition has been served, the next step is to file your papers with the court. This can be done by mailing them or bringing them to your local courthouse in person. You will also need to file a certification of service, which proves that you served the petition on your spouse.
There are a few other things you will need to do during the divorce process, such as attend a hearing and file an answer to the petition. Most of this information can be found on the court's website or by contacting the court clerk.
Because your spouse is overseas, expect every step to take longer. Not only will you need to research the steps for divorce in your spouse’s country of residence, but you'll also need to wait for paperwork to travel back and forth. Plus, timing can be an issue for hearings, even if the judge allows your spouse to appear remotely.
How do you divorce a U.S. resident while you are overseas?
If you live overseas but your spouse resides in the U.S., this could make it easier on you – or more difficult – depending on how you want to go about your divorce.
Getting a divorce in the country where you reside may seem like the path of least resistance, but if you're not there permanently or don't meet that country's requirements to get a divorce, you may not qualify. Some countries also require that your marriage first be recognized in their country before they can issue a divorce decree.
However, if your spouse meets the residency requirements for divorce in the state where they live, and you're amenable to appearing at divorce hearings remotely, you may consider filing for divorce in the state where your spouse resides. While this might sound like you’re putting yourself at a disadvantage, it may work out, as it won't be as difficult or costly to serve the divorce papers on your spouse. If both you and your spouse agree on the terms of the divorce, this can be an especially effective way to get an international divorce.
What if we’re both not living in the U.S. but want a divorce?
If both you and your spouse are living abroad, you cannot get a divorce in the U.S. Neither of you will meet the residency requirements.
If you want a divorce in the country where you live, you'll need to make sure you meet their residency requirements. What’s more, you may first need to have your marriage recognized in that country before they'll issue you a divorce decree.
Notably, some countries are very religious and rarely grant divorces. Make sure you've researched your country's public policy on divorce to ensure you can even be granted one.
Who can help with a foreign divorce?
An international divorce case can be complex, even if it’s amicable. When a divorce becomes contested, the international component can make things extremely legally tumultuous. Help from a divorce attorney may be necessary.