More and more today, the makeup of a family transcends borders. Likewise, the breakup of a married couple also transcends borders. International divorce can pose unique challenges. At The Law Firm of Erin N Birt PC (Birt Law), our international divorce attorney based in Illinois understands what these challenges are and how to proactively address them to make an international divorce go as smoothly as possible. Contact us at (630) 891-2478 to schedule a consultation & planning session today.
What Is Considered an International Divorce?
There are circumstances where laws of another county may apply to a divorce as opposed to the laws of the United States. When another country's laws apply, the divorce is often referred to as an international divorce. These divorces are known as international divorces and may include but are not limited to the following scenarios:
- The marriage took place in another country.
- One or both spouses live in another country.
- One or both spouses own property in another country.
- One or both spouses are citizens of another country.
If you live in Illinois and are unsure as to whether or not your divorce constitutes an international divorce, it is best to speak with our family law attorney experienced in this area.
Who Has Jurisdiction over My International Divorce?
In most cases, there is more than one country that can claim jurisdiction in an international divorce. The problem that arises is that each of these countries has its own rules on divorce and all the related issues that flow from a divorce. As such, the country of jurisdiction can have a huge impact on the outcome of the divorce.
In most cases, in whichever jurisdiction the first spouse files for divorce, the respective court will have the authority to oversee the divorce. That also means that the same court can decide things on issues like:
Generally speaking, there are two requirements for a country to have jurisdiction:
- Recognition. The country must have recognized your marriage in the first place. In the United States, most marriages legally entered into in any other country are recognized. The same, however, is not true in other countries, especially for LGBTQ+ marriages.
- Residency. You must satisfy the residency requirement established by the country. In the United States, that means satisfying the residency requirement of Illinois (or any other U.S. state in which you or your spouse resides). You must live in Illinois at least 90 days before filing a Petition for Dissolution of Marriage.
You need an international divorce lawyer to guide you through the process and to ensure your rights and interests are upheld each step of the way.
What are the Unique Challenges of an International Divorce in Illinois?
International divorces have unique challenges. Some of the most common are explained below.
Different countries have different cultures, and how a court handles divorce reflects that culture. For example, women may not be afforded the same rights as men in divorce proceedings in some jurisdictions.
Having the terms of a divorce order enforced is a challenge in many jurisdictions. Some countries may refuse to even honor that there was a divorce if it goes against their laws–like the Philippines or The Vatican, which do not recognize divorce under any circumstances. Many countries, in the absence of an international treaty, may not enforce property division, custody, or support orders.
As it is, nearly half of all countries, including the European Union, are members of the Hague Convention on Private International Law. This Convention includes several divorce-related conventions:
- Convention on the Recognition of Divorces and Legal Separations
- Convention on the Law Applicable to Matrimonial Property Regimes
- Convention on the Civil Aspects of International Child Abduction
- Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
There are also treaties made between and among countries to recognize and enforce divorce, custody, and other related matters.
Some countries are very private about ownership of property. This can make it very difficult to find out what a person actually owns, much less force them to part with it in a divorce proceeding.
Recognizing marriage is one thing, but other things matter, too, when it comes to recognition and international divorce. For example, if you have a lawfully created and executed postnuptial or prenuptial agreement, another country may not recognize it even if the United States does.
Two Critical Ways to Protect Children during International Divorces
Perhaps the most contentious issue to arise in international divorce is child custody and time-sharing. When faced with an international divorce, there are steps a parent or guardian can take to help protect a child at the center of an international divorce.
One of the most important steps a parent can take is to hire a divorce lawyer who has experience with international divorces and child custody. By having a legal advocate on their side, a parent can receive customized, relevant advice and representation.
Jurisdiction and other important matters are often determined by where the first party files the petition to dissolve the marriage. Do not wait to file for divorce as your delay could have a major effect on how custody is awarded.
Dual Filing and International Divorces
When one spouse files in the United States but the other spouse files in a foreign country, this results in a dual filing. Courts in the United States will consider a number of factors to determine if they can continue to hear the divorce case:
- Does the couple have property in the U.S. state where the divorce petition was filed?
- Does the foreign court have a greater interest in the divorce than the U.S. state where the divorce was filed? If so, what is that interest?
- Do both spouses live abroad? Is at least one spouse domiciled in the state where the divorce was filed?
- If the divorce is fault-based or if evidence is required on any matter (e.g., property, child custody, domestic violence), then which state harbors the most evidence (e.g., bank accounts, police reports, witnesses)?
- Would the spouse domiciled in the U.S. face considerable hardship if forced to participate in the case filed abroad?
These factors may require intensive research. Only an international divorce lawyer would be able to address these factors thoroughly and competently.
Contact an International Divorce Lawyer in DuPage County Today
International divorces involve unique challenges unknown to other divorces in the United States. At The Law Firm of Erin N Birt PC (Birt Law), our international divorce lawyer in Illinois will handle your international divorce with care and precision. We understand what's at stake and are committed to helping you determine the best jurisdiction for your divorce and representing you throughout the process. If you are a Illinois resident and involved in an international divorce, contact us today at (630) 891-2478 to schedule a consultation & planning session