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?
- What are the most important things to know about international divorce?
- Checklist: Filing for divorce with an international spouse
- How do you file for divorce if you’re in the U.S. and your spouse is overseas?
- How do you divorce a U.S. resident while you are overseas?
- What if we’re both not living in the U.S. but want a divorce?
- Who can help with a foreign divorce?
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.
Residency requirements
The first step is to determine whether you meet the residency requirements for divorce. In most cases, you must have lived in the country where you’re divorcing for a certain period 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.
Here is a table with an overview of residency requirements by country:
|
Country |
Residency Requirement |
|
Australia |
One year (one spouse only) |
|
Canada |
One year (one spouse only) |
|
Mexico |
Married address established in Mexico |
|
The Netherlands |
Six months (if one spouse is a Dutch citizen) |
|
United Kingdom (except Northern Ireland) |
One year |
Paperwork
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
As we noted above, 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.
For example, if you want to divorce your spouse after you’ve both lived in the UK for at least one year, as per the table above, you may do so unless you’re living in Northern Ireland. Another example: If you want to file for divorce in Mexico, you and your spouse must have established a marital address 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.
Spousal support in the UK is similar to spousal support in the States. The amount and duration largely depend on the divorcing couple's circumstances. UK courts are less likely to award permanent alimony, preferring short-term support options with a fixed end date.
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.
In the UK, if you cannot decide how to divide your assets, the court will decide for you. This usually takes longer and costs more, but if you’re unable to reach an agreement with your spouse, this could be the only option. UK courts aim for a 50/50 split of property but will deviate from this based on the circumstances of each divorce.
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.
In a UK divorce, the best course of action is to decide with your spouse what child custody will look like. However, if you’re unable to agree, the court will step in. Courts generally award shared custody, meaning each parent will have the child 50% of the time. The same is true in Mexico where courts will only deviate in extreme cases.
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.
Most countries allow divorce by no-fault. Some, however, require a reason for divorce. There are only a few:
- Burundi
- eSwatini
- Guyana
- Liberia
- Madagascar
- Namibia
- Philippines
- Sierra Leone
- Sri Lanka
- Suriname
- Tanzania
Vatican City is the only country that does not allow any form of divorce.
Checklist: Filing for divorce in the U.S. with an international spouse
When divorcing a spouse who lives overseas, the complexity becomes much higher than if you both lived stateside. In every instance, you’ll need to research local laws and requirements to ensure you’re following proper divorce procedures.
Generally, here’s a checklist you can follow:
- Identify your jurisdiction. Determine where you can file for divorce based on residency requirements and other legal obligations.
- Prepare necessary documentation. Gather all the necessary paperwork, which may include your marriage certificate, financial records, property records, and any premarital agreements.
- File the divorce petition and serve your spouse. Prepare and file a divorce petition where you intend to file. You’ll also need to provide a copy to your spouse overseas, a process which may cost a hefty sum and take months, depending on the local requirements.
- Follow up. Your spouse has limited time to respond to the divorce petition, though this time might be longer depending on where they live. If they do not respond within the given time, you may be able to proceed with a default divorce.
- Negotiate terms. If you’re amicable with your spouse, you can negotiate the terms of your divorce on your own. This includes property division, spousal support, and if applicable, child custody and support.
- Get court approval. Once terms are agreed upon, the court where you filed the divorce petition must approve your agreement. They will then issue your divorce decree, legally terminating your marriage.
Helpful resource: Divorce Deadlines by State
How do you file for divorce if you’re in the U.S. and your spouse is overseas?
1. 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.
If your spouse resides in a country that is a signatory to the Hague Service Convention, this treaty will dictate how you serve divorce papers. The treaty simplifies the process of serving documents abroad by establishing a central authority in each member state to receive and serve documents.
2. Prepare your divorce papers, making sure all information is accurate and complete
You’ll need to provide multiple copies, translated into the official language of your spouse’s country, if necessary.
3. Submit your divorce papers to the central authority in your spouse’s country.
This body will then serve the documents. Once the papers have been served, the central authority will provide a certificate of service. This certificate is your proof that your spouse has been legally served. If your spouse lives in a non-Hague Service Convention country, alternate methods may be used to serve them.
You may need to use Letters Rogatory or letters of request. These are formal requests from a court in the U.S. sent to a court in your spouse’s country to serve the papers.
If you cannot locate your spouse, you may be able to serve them by publication. This involves publishing a notice of the divorce proceedings in a newspaper in the area where you believe your spouse to live.
In some cases, and only with court approval, you may be able to serve your divorce papers on your spouse by registered international mail. This is the least-official and most time-consuming option, making it your last resort.
4. 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 would meet the residency requirements in that circumstance.
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. Research your country's public policy on divorce to make sure 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.
References
Money and property when you divorce or separate. Gov.UK.
Making child arrangements if you divorce or separate. Gov.UK.
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Hcch.net.
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