Key Points in International Divorce

by: Jeremy D. Morley

International divorce raises the issue of where the divorce should be pursued. Often the rules do not allow for any choice about this but sometimes a choice is available and this could have a huge impact on who gets what out of a divorce case. Courts in different countries -- and to a lesser extent in different states -- apply enormously different rules to the divorce process.

For people who travel a lot, or who have more than one residence, or who have businesses or property in different countries, it may well pay to check out very carefully the various possibilities.

If you are contemplating divorce and believe that you might be able to bring the case in more than place, you should first find the answers to come very basic questions.

Here are some key points to consider in deciding where your divorce case should be brought:

• Which courts have jurisdiction and what law will they apply? Just because you are a citizen of a particular country does not mean that you can bring your divorce case there. In New York, either the husband or the wife must have been a resident of the state for one year before the case is commenced. In Connecticut there is also a requirement for one-year residency, but there is no such requirement if it was in Connecticut that the marriage broke down. In other countries, such as Japan, divorce law is based in significant part on nationality. A Japanese court will apply Japanese law if the parties are Japanese, but if they are foreign citizens it will apply the law of their citizenship. But what if they are citizens of different countries? Here, the Japanese court will apply the law of the place of their residence if they habitually reside in the same place; otherwise it will use the law of the place that is most closely associated with the parties. What if a Japanese citizen is married to a non-Japanese citizen? Here the Japanese court will use Japanese law if the Japanese citizen habitually resides in Japan.

• Is there anything that you can do that will give a court jurisdiction, such as by moving back to your home country permanently or at least for a while? How can you do this effectively, and what are the risks?

• How will the courts divide the parties' assets? This involves a host of concerns. First, you must find out what kinds of assets each court considers as assets that are subject to being divided in the divorce. You need to identify the assets that you and your spouse own. You need to group them into categories, such as: items that you owned before the marriage; items acquired during the marriage; items owned before marriage that have increased in value during the marriage; items received as inheritance or as an award in a lawsuit; and so on. You should also think about where the assets are physically located, since this may be extremely important. Another critical factor in a U.S. court is whether you or your spouse has acquired professional qualifications during the marriage ¡V these might be considered as being a valuable asset of the marriage.

• You must then find out the criteria that the respective courts use to divide the assets. Do the courts look at what is equitable, as in most American states? If so, what does this mean in practise? Do the courts look more at the needs of the parties, as was historically the approach in England? Again, what is the likely impact of the approach in practise?

• What are the grounds for divorce? Do the courts allow so-called no-fault divorces or must you prove adultery, cruelty or another ¡¥matrimonial offence¡¦ in order to be able to obtain a divorce? How easy will it be for you or your spouse to prove what is needed to authorise a divorce? In Japan you get a divorce through the family court system or alternatively through a simple registration procedure at the ward office known as "mutual consent divorce" (kiyogi rikon). The latter procedure is much faster and cheaper but it requires both parties to appear at least once.

• What are the respective rules for maintenance or alimony. You must understand not only the rules but you should inquire about how they are applied in practise in the respective countries.

• If you have children, you must consider the rules about custody of children and the support of children. In some places, the courts are much more favorably inclined towards the rights of men ¡V you need to know this if you anticipate that there might be a custody issue. What are the rules and the practices about deciding visitation rights and deciding who makes important decisions about the children, such as their religious affiliation, their education and matters relating to their health? What criteria do the courts apply to determine child support? Most American courts apply set guidelines. How do they apply in your case? What approach would be followed if you or your spouse went to your home country? In Japan, there are also guidelines and you should consider their application to your case.

• What are the various tax consequences of all these issues?

• What are the rules about legal fees, which can be high in divorce cases? Differences in the rules might have an enormous impact. For example, a very recent ruling in New York seems to require the wealthier spouse to pay the legal fees of both of the parties, even if the less wealthy spouse has assets.

• There could be many other issues that you have to consider which will vary from case to case. For example, you might have to know whether there are any differences as the respective courts' rules about proving that one party is hiding assets or about what financial data you must disclose to your spouse. Also, you should be concerned about how the judgments of the court are ultimately to be enforced. This is potentially a problem with the "mutual consent" divorce; there is a serious question as to whether courts outside Japan will recognise these divorces.

Once you have made this kind of analysis it is critically important to find out whether the courts in the place where you expect to be residing, or where you expect your spouse and/ or children to be residing, will recognize and enforce a judgment of courts in another jurisdiction and in what circumstances.

You should ask a lawyer to help you to make the necessary evaluations. But don't be surprised if you do not always get clear answers. In the end, it will be up to you to make the final decision. It can be well worth it to bring your case in the best possible jurisdiction