Divorce Attorneys Assisting with Family Law Matters on a Global Level
Determined Advocacy. Sophisticated Solutions.
Modern lifestyle and global mobility have prompted a significant increase in international marriages. When such relationships fail, problems can arise that require special attention and expertise. If for example, one spouse threatens to take the couple’s children to a foreign country or if marital assets exist abroad, a family matter can quickly become an international proceeding. Especially when the well-fare of your children is at risk, time is of the essence.
“International family cases require specific expertise and a sophisticated strategy that is based on an understanding of different cultures, languages, and legal systems. Oberheiden, P.C. has that experience and a track record of successfully serving our clients during difficult times. Call me. I am prepared to help.”
Dr. Nick Oberheiden
When Is a Divorce International?
There are numerous factors that can turn a divorce or a custody dispute “international.” The most common scenario is that partners with different nationalities or with different geographical preferences cannot agree on a place to raise their children. Alternatively, especially in so-called high-end divorces, assets may be located in different countries.
Example 1: A man from Italy visits the United States, decides to stay, and then later has a child with a U.S. citizen. After some time, the man decides to go back to Italy. He wants to take “his” child with him. The woman refuses.
Example 2: A woman from Brazil marries a Brazilian man. The couple moves to the United States for work reasons. After two years, the woman misses Brazil and wants to move back with “her” two children. The man objects.
Example 3: A wealthy couple lives in Houston, Texas. Wife and husband are U.S. citizens. The couple has no children. However, the man owns an international company with branches in the United States, Canada, and Mexico. What is the value of the man’s corporate assets in the foreign countries?
Example 4: A U.S. couple decides to divorce. The woman expects the husband to hide significant assets off-shore. An experienced international divorce attorney can help to locate the assets and make them part of the community property distribution.
Example 5: A gay couple got married in Sweden. Both partners now live in the United States and want to get divorced here. What steps are needed to inform Swedish officials about the terminated marriage? What should a married gay couple do when they want to get divorced in a country or a state that does not recognize gay marriage?
What Is The Difference To A “Normal” Divorce?
These initial examples illustrate how international family disputes can create serious legal challenges. In standard family proceedings, the issue of where to live or where to file for divorce or fight over child abduction does not exist. If a couple has lived in New York City for the last four years and then decides to end the marriage, that marriage will be terminated in NYC. Any competent family lawyer can assist in the process.
Not so in cases involving multiple nationalities, attempts to direct the case to a foreign court, or concealed assets abroad. Here, it is not always clear where a case should be brought or, for example, how to formally notify a spouse in Iran about a legal proceeding against that spouse in the United States. Caution and careful planning are essential, and finding a lawyer with significant experience in international law should be a strong consideration.
“Few things about international law are easy. Each case presents its own challenges and hurdles to overcome. By far the best recommendation I have is to consult with experienced counsel early to develop the best strategy for your case.”
Dr. Nick Oberheiden
Besides the fact that divorce laws vary in every country, in many cases an international divorce may be further complicated by local religions, cultures, and customs. In the international context, a person may find significant differences regarding legal concepts, such as grounds for divorce, alimony or other spousal support, women’s rights, property distribution, and child support and custody. Additionally, where an international divorce is sought and why may depend on the citizenship or immigration statuses of the spouses and the children born to the marriage. For these and other reasons, handling an international divorce is not for just any lawyer but requires detailed and specific experience.
Which Court Has Jurisdiction?
In each of these scenarios, international issues will implicate a determination of jurisdiction. Generally, in order to grant a divorce, a court must have both “subject matter” jurisdiction (a court’s power to hear a certain case) and “personal” jurisdiction (court’s power to make decisions for a person). To adjudicate an international divorce, a court will require both types of jurisdiction.
Typically, a court with jurisdiction in a divorce proceeding will likely be found in the country of residence of one of the spouses. This hurdle may lead to unexpected results. For example, just because both spouses are U.S. citizens does not mean that they can get a U.S. divorce. Specifically, if both spouses habitually live abroad, neither spouse may be able to file for a U.S. divorce (unless and until they can meet a U.S. forum’s personal and subject matter jurisdiction requirements).
Even then, when an international divorce is finalized, questions as to its international recognition or validity will arise. The answer to whether an international divorce is recognized is oftentimes not clear. For example, having a child support order over an individual that lives in another country will not be enforceable unless you properly register such order under that country’s laws. Conversely, you may have to proceed under U.S. federal and state law to register and enforce such a foreign judgment in the United States.
When a U.S. divorce is sought with international property issues, gaining jurisdiction (or even basic information) over international property, businesses, investments, or other assets will be challenging. Moreover, religious and culturally based laws that favor men may create significant hurdles for women — for example, women seeking divorce in North Africa or the Middle East. Such limitations may sometimes be seen when a foreign divorce judgment precludes a woman from traveling outside the country with the children of the marriage without the father’s permission. Fortunately, divorce, custody, and dual citizen issues are generally more consistently (and fairly) handled through European Union and United States proceedings.
It is imperative to consult with experienced counsel to analyze all available jurisdictions and to understand such jurisdictions’ available laws and procedures.
Where Should I File For Divorce, Here Or Abroad?
There is no easy answer to the question of where to file for a divorce. Divorce laws and divorce court procedures vary considerably around the world. For this reason, your selection of the best place to bring your case may be the most critical decision you can make in an international family law case. A divorce lawyer with experience in international matters may help you determine the applicable laws for each jurisdiction and will competently advise you in the right direction.
“Many international cases are like complicated chess games. Prevailing requires a smart strategy and profound experience. The decision where and when to file a family case in an international context is of paramount importance. The longer you wait, the more likely it is that the other side will make that determination before you.”
Dr. Nick Oberheiden
Indeed, the decision to file for divorce in another country requires a careful consideration of which forum can or will have jurisdiction over, among other things, the marriage and the children of the marriage, the spouses’ real and personal property, and child and spousal support.
Additionally, an international family law attorney will analyze which jurisdiction has the closest connection with both spouses, including where a client lives currently, where property is owned, the totality of assets such as businesses, bank accounts and investments, and the nationalities and immigration statuses of both spouses. In general, analyzing where to file a divorce action will include such factors as:
- Personal and Subject Matter Jurisdiction. Does or will a specified court have the power to adjudicate your and your spouse’s rights, for example, to children or property? Is divorce even allowed? (No, if you are in the Philippines and are not Muslim);
- Fault vs. No Fault. Some countries allow for no fault divorces, while others require proof of fault. Indeed, some jurisdictions will punish adultery while others allow for a divorce for simple incompatibility. Will your case require proof of fault, and in such a case, what factors or evidence is required to establish fault?;
- Maintenance or Alimony. Countries vary widely whether a spouse will be entitled to either maintenance or alimony post divorce;
- Custody. Some countries favor the interests of father, while others will favor the interests of the mother (noting that in many cases, a parent’s adherence to a particular religion will have significant effect on a custody dispute);
- The Hague Convention. The decision to file a divorce action may be tied to the abduction of a child, in which case the Hague Convention will apply;
- Child Support. While some countries like the United States have Child Support Guidelines, it is important to distinguish if the guidelines of another country will treat one party favorably or unfairly;
- Valuation of Marital Estate. Not all countries follow the same approach to valuating property in relation to a divorce action. For example, if a business is part of the marital estate, what are the factors that a potential foreign jurisdiction will utilize to value such asset? Will such factors be favorable or unfavorable to a divorcing party?;
- Pre or Post Nuptial Agreements. U.S. courts are not bound by one standard approach to prenuptial agreements signed in different states or countries; accordingly, prenuptial agreements entered into abroad are inconsistently upheld or rejected;
- Pensions and Retirement Plans. Some countries, like the United States, allow for division of retirement plans upon divorce, and others do not;
- Inheritances. Many jurisdictions do not divide assets that a spouse has inherited, but some do;
- Gifts. Many jurisdictions do not divide gifts received by a spouse;
- Trust Assets. Some jurisdictions ignore assets that a spouse has put into trusts, and others pierce trusts;
- Premarital Assets. While some jurisdictions allow the division of premarital assets, others do not.
Choosing the right venue for your proceeding is of critical importance. In many instances the litigation location will significantly impact the outcome of the case. Do not let the other side make that decision. Do not wait and risk losing the opportunity to best protect your children and your assets. Contact experienced international family law lawyer Dr. Nick Oberheiden today. All consultations are free and confidential.
What should I do in an international Child Abduction Case?
Among the most disturbing and horrific things any parent could possibly endure is to lose their children. If you believe your child may be removed from your state or country of residency, you must call experienced international lawyers immediately. Experienced child abduction case attorneys with direct channels to federal and international law enforcement are often able to avoid abductions by notifying critical personnel at border protection, the Federal Bureau of Investigation, and other law enforcement agencies.
“There is nothing funny about taking away your children. Whether a remark was made as a joke or constitutes a real threat, do not gamble. Act immediately and hire non-compromising attorneys today. I work with federal law enforcement every single day. I know what to do.”
Dr. Nick Oberheiden
International child abductions are a sad component of family disputes involving parents with different nationalities, and they are far more common than people think. After all, when both parents are willing to do anything for their children and they simply cannot agree on a place to live, one side may be tempted to unlawfully (and perhaps forcefully) determine the residency of the children unilaterally by abduction.
Abductions occur in different ways. One parent may travel to his or her native country and simply refuse to come back to the place where the family used to live together. In more extreme cases, a parent may forcefully kidnap a child by showing up unannounced at daycare or at school. Because parents cannot technically “kidnap” their own children, the law uses the word “abduction,” which amounts to the same level of a criminal intent as kidnapping.
“It is much easier to avoid abductions than undo them. If your children are exposed or if you feel threatened, you should contact experienced attorneys immediately.”
Dr. Nick Oberheiden
If you are a parent in hostile contested international family dispute, you should be wary of any situation where you believe that the other parent is planning to take your child across borders. Through preemptive action in your jurisdiction, you may be able to prevent an abduction from happening in the first place. If the abduction has already occurred, you should understand that each international child abduction is unique; however, in all cases, a successful resolution will require quick action on your part.
How Do I Get My Children Back?
In a case where the Hague Convention applies (if your child is found in a member country and the child is under 16), your global family law attorney may be able to file an “application for return.” You should understand that a Hague Convention application is not the same as asking for a determination of who should have custody; rather, it is a streamlined request that your child be returned to his or her country of “habitual residence” so the courts of that county can thereafter decide on matters of custody and access.
Nonetheless, if you do decide to submit a Hague Convention application, you must do so as soon as possible after a wrongful retention or abduction has taken place. Notably, the success of a Hague Convention application may decrease if the filing occurs more than a year after the abduction, as the offending parent may argue that the child has settled into new circumstances. Also, a parent does not need to have a custody order in place as a prerequisite for filing under the Hague Convention. In any case, a delay in filing can negatively affect the outcome of the application.
Where Can I find Experienced International Divorce Law Attorneys?
In today’s global community, international marriages pose significant hurdles on clients and family law attorneys. Legal counsel may have little experience regarding the complex role an international context places on representing their clients. Moreover, such a representation may require a strong sensibility for differing languages, cultures, and religions, in addition to international conventions, treaties, and the laws and norms of multiple nation states. Ideally, international law attorneys should be versed in both common law and civil law systems.
Dr Nick Oberheiden has significant international and cross border jurisdiction experience in litigation matters.
- Trained in Negotiations, Harvard Law School
- Law Degrees from Europe and the United States
- Ph.D. in International and Comparative Law
- Fluent in Multiple Languages
Oberheiden, P.C. is well-positioned to handle complex cross-border disputes involving issues of foreign and U.S. federal law. We have significant experience with all major legal systems, among them the laws of the United States, Brazil, Spanish-speaking South America, and continental Europe. Our fluency in multiple languages enables us to advise many of our clients in their native language. Please contact Dr. Nick Oberheiden directly at 1-800-701-7249.