How Can I Divorce My Spouse if One of Us Lives Outside the U.S.?
Filing for divorce when one spouse lives in a foreign country isn't impossible, but it does add a layer of complexity to getting a divorce. Before you dive in – and before you hire an expensive divorce attorney you might not actually need – it helps to understand the divorce laws in your state and know some facts about international divorce.
Filing for divorce when your spouse is in another country
If you live in the U.S. and your spouse lives in a foreign country, you may be able to file for divorce in your home country and state.
The majority of states have a residency requirement, which means you must have lived in the state for a certain period of time before you can file for divorce there. A few states even require filers to have lived in their filing county for a certain amount of time.
Most state residency requirements are only a few months, but some are as long as one year. Make sure you know your state's residency requirements and that you're complying with them.
As long as you can fulfill your state's residency requirement, you can pursue divorce proceedings in the U.S. It's important to note, however, that you must follow certain steps to make sure your spouse receives proper notification of the divorce.
How to serve divorce papers to an overseas spouse
One of the most important aspects of filing for any divorce is serving the divorce papers on your spouse. This is crucial because your spouse must be informed of their own divorce case. Further, they have the right to be involved in the division of property and other planning details of your marital settlement agreement.
Courts don't want to keep people in marriages they don't want to be in, but they do have an interest in making sure each spouse has an opportunity to participate in the divorce process.
Waiving personal service
If you and your spouse are amicable, your divorce proceedings may flow smoothly. If you both agree, you could ask your spouse to sign a waiver of personal service. This means they agree to waive personal service of the divorce petition and associated documents. This only occurs in amicable and uncontested divorces where the spouses agree divorce is the right step. If your spouse signs a waiver, you must file it with the court.
Finding an overseas process server
In most cases, even when both spouses agree to divorce, the respondent must be served by a process server. In this case, you'd need to locate and hire a foreign process server in the country where your spouse lives. This can be extremely expensive and time-consuming. For this reason, many divorcing couples decide the respondent will waive personal service. But if the two of you can’t agree to do this, finding an overseas process server is your next option.
Serving by publication
If you and your spouse haven't spoken for some time or you don't know exactly where your spouse lives (but you do know their country or city), you may be able to serve them by publication. Service by publication involves the petitioner posting a notice in a newspaper for a certain number of days about the pending divorce. After the days have elapsed, the overseas spouse will be considered “served” by the court.
Note: Service by publication, whether domestic or international, must be approved by a judge before you publish the notice. The judge will review your reasons and determine whether a better option exists. If not, they will approve your request to serve your spouse by publication and advise you how long the notice must appear in print. Once that time has elapsed, you must provide proof to the court that the notice ran for the specified amount of time and that your spouse should now have received notice of the divorce. The judge may also pause proceedings to allow time for your spouse to respond.
Filing for divorce when you are overseas and your spouse is in the U.S.
If you’re an expat and your spouse is in the U.S., international divorce can be more complicated if you’re the filer. You may have to file for divorce in the country you're living in, and they may have their own residency requirements and family laws to satisfy.
In the best-case scenario, your spouse would be living in a state where they've already met the residency requirement. Further, that state's divorce laws would not require you both to be living in the state. In most cases, as long as the residency requirement has been met, you can file for divorce in the state where your spouse has been living — even if you are not there. However, if your spouse has not fulfilled their residency requirement, you may need to file abroad.
Contact your local U.S. embassy
If you’re filing for divorce in a foreign country, it's best to ask your local U.S. embassy or consulate for guidance. While they cannot provide you with legal advice, they can point you in the right direction.
The good news is that if you’re pursuing an international divorce in which you’re out of the country, most U.S. states will recognize it. This can make the division of property and debt slightly less complicated. However, enforcing foreign divorce orders regarding alimony/spousal support or child support can be exponentially more difficult if you and your children don't live in the same country.
The legal system can be daunting, especially if you and your soon-to-be ex-spouse are living in different countries. At Hello Divorce, we strive to help all divorcing couples part ways and get their divorce decree with grace and ease, regardless of their legal issues. The good news is, even though you’re living in different countries, you may be able to get your divorce decree without hiring an expensive divorce lawyer.
We value our client relationships, which is why we offer affordable online divorce plans as well as several services which may be of help in your foreign divorce, including online mediation services and online attorney appointments. We’re here to help you work your way through the divorce process.
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