Lawyers with the Experience and Expertise to Handle International Family Law Cases
International family law is a term that describes family law matters that have an international element. There is no international court that applies or enforces the obligations of any particular country’s family law. In short, the laws that will apply to an international family law matter will be those of the forum in which these issues are raised.
What Laws Govern an International Divorce?
The fact that a marriage was undertaken in a particular country does not mean that a divorce proceeding must also proceed in that country. Generally, many countries will exert “subject matter” jurisdiction (a court’s power to hear a case) over a divorce proceeding if the spouse or spouses can establish that country’s residency requirements. Nonetheless, some countries do not require residency to grant a divorce. Instead, they may require other “connections,” for example, that the marriage occurred, that the couple resided in the country at a relevant time, or simply that the parties submitted the required documentation. To grant a divorce, most jurisdictions, like the United States, require that a court have “personal” jurisdiction in addition to subject matter jurisdiction. Personal jurisdiction means that court has the power to decide legal matters for a person. In the United States and many other jurisdictions, personal jurisdiction is achieved if a person resides in, is served in, or consents to the relevant court’s jurisdiction.
“One of the main priorities I have as a lawyer in international family matters is to identify and select the most favorable laws for my client.”
Dr. Nick Oberheiden
Attorney-at-Law
Your family law lawyers will need to analyze all the applicable countries’ laws regarding the bases for divorce, personal and subject matter jurisdiction, and spousal and child support, as well as issues such as child custody, citizenship and residency, prenuptial agreements, and property division. For these reasons, we recommend that you consult with an international family law attorney familiar with global laws and customs that can help you determine the best place to file your divorce.
Which Court Has Jurisdiction in International Divorce Cases?
There is no simple answer to the question of which court has jurisdiction over an international divorce. In short, depending on the facts and the goals of a particular client, more than one court may have jurisdiction. Nonetheless, a strategically minded international attorney will prepare an initial analysis of the most obvious possible jurisdictions. Factors analyzed will include the possible jurisdictions as consistent with the client’s current residency, any other jurisdictions with which a client or client’s spouse may have substantial connections, and any other jurisdiction that may be of advantage to a client’s interests.
For cases brought in the United States, the courts are divided into fifty-one court systems, consisting of the federal judiciary and the judiciary of each of the fifty U.S. states. Each judicial system is independent and governed by its own rules and regulations. In general, personal jurisdiction defines the permissible territorial reach of a court to subject a natural or judicial person to a particular court. For U.S. cases, the starting point is the Due Process Clause of the 14th Amendment to the U.S. Constitution, which limits state and federal courts’ exercise of personal jurisdiction.
What Laws Govern International Custody Cases?
The core principle of international child custody and abduction law is that a parent should not get a legal advantage by taking a child to another country in contravention of the rights of the other parent. The United States and 94 other countries have signed onto the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Hague Convention applies when a child is removed from and taken to another member country. It provides for a method to return abducted children to their home country, specifically, that children under 16 shall be returned to their country of habitual residence “forthwith” if they have been “wrongfully removed or retained” less than a year before a petition is filed by the non-offending parent.
If more than a year has passed since a child is wrongfully removed or retained, the offending parent may try to establish that the child should not be returned to the home country because the child is now settled in the new circumstances. Nonetheless, the Hague Convention entertains certain defenses to its application, including the petitioner’s acquiescence or consent to the child’s removal. Moreover, the offending parent could argue that there existed a non-exercise of custody rights or that granting the petition would pose a grave risk of physical or psychological harm to the child. While such defenses are narrowly construed, the burden of proof is set out in the Federal International Child Abduction Remedies Act.
Is a PreNuptial Agreement Signed in another Country or based on another Country’s laws Enforceable in the United States?
U.S. courts do not follow a uniform approach to validating or rejecting prenuptial agreements that have been signed in another country or that stipulate the application of another country’s laws. In short, such prenuptial agreements receive inconsistent treatment by U.S. courts. Indeed, U.S. courts have numerous approaches to determine the validity of such prenuptial agreements. Some courts follow the lex loci approach, which means that the court applies the prenuptial law of the country where agreement was signed. For example, if another country’s law provides that alimony may not be stipulated for in a prenuptial agreement, then such agreement will also be invalid in the U.S. jurisdiction making such ruling. Some courts have applied a balancing test, where they assess whether applying the law of the jurisdiction would outweigh respecting the expectations of the parties. Some courts flatly refuse to apply another jurisdiction’s laws to determine the contractual validity of a prenuptial agreement.
Our experienced international divorce attorneys are ready to take your call. Contact us today to discuss your situation with one of our global family law lawyers. We are here to help you and the initial consultation is free!