When a spouse is from a foreign country, divorce can be complicated — especially when the couple works in one county, assets are in another country, a pension is in another, and the kids are in a fourth country. What are the issues in an international divorce?
Divorce Around the World
As the Economist reports, globalization has resulted in multi-national marriages, which is common among wealthy, highly mobile families. When they stop being high-earning families, life gets tricky, and international divorce can get even trickier.
Families which got used to living on huge bonuses are unable to continue with the commitments they have taken on — housing and school tuition, and the cost of living the high life.
Where to Sue?
So, who sues whom and where in an international divorce? The answer is more difficult than people think. A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London.
In France, things could be very different. Adultery can be penalized, but in the typical French divorce, any alimony could be less and for eight years at most; and prenuptial agreements are binding.
However, in Florida, the outcome could be different still. Under Florida law, alimony is constantly under threat of a major revision by the legislature, and child support is governed by a formula. Courts may award attorneys’ fees, and prenuptial agreements are generally enforceable.
International Child Custody
Rules about children can differ too. I’ve written on international divorces, especially as they relate to child custody issues and The Hague Convention on abduction.
The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.
There are three essential elements to every Hague Convention case:
- The child must be under the age of 16 years of age;
- The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
- The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”
So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.
The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.
Even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive.
The annual State Department report to Congress on observance of The Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”.
Hiding assets is a problem in every divorce. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.
The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.
Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.
Choosing possible countries to file your divorce in can be construed as “forum shopping”.
The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce.
But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.
The Economist article is here.