Divorce is a fact of modern life. It has long been believed that 50% of marriages end up in divorce. Recent reports suggest that the percentage is actually lower and that divorce rates have been dropping in the last decade. Regardless of the data, you’re most likely reading this article because you’re going through the minefield of the divorce process. While most divorces share the same characteristics, there are some circumstances that makes filing for marital dissolution more difficult when the Respondent lives in another country. Read on to learn more about how to divorce someone who is in another country.
Research California Long Arm Statute
When you file for divorce in your local area, the California family law court must have personal jurisdiction over the Respondent in order to legally proceed over the divorce (in the event the divorce is not consensual). This means your spouse must agree to the divorce, or there must be a long arm statute or international treaty that permits the court to oversee the case. You will need to conduct research to determine if the family law court in your area has jurisdiction over the out-of-country spouse in order to oversee the marital dissolution.
The long arm statute pertains to the court’s ability to issue orders over property, custody and financial issues. If a party merely wants to terminate marital status, the court only needs personal jurisdiction over one of the parties. This means that the party seeking the divorce needs to have resided in California for 6 months and in the county for 3 months. On the other hand, orders pertaining to child custody require subject matter jurisdiction over the children. Orders requiring payment of money require personal jurisdiction and orders pertaining to property division may need both subject matter and personal jurisdiction. For example, if one of the parties have been living in California with a child or children of the parties for at least six months prior to filing for divorce, the court in California will be able to make custody orders because it has subject matter jurisdiction over the children. However, if the other parent who may be obligated to pay child support has been living in Ireland, and the California court cannot establish personal jurisdiction over that parent through the long arm statute, a support proceeding must be commenced in Ireland.
File the Marital Dissolution Petition
Next, once you are able to confirm that the court does have jurisdiction to hear your case, you will need to prepare and file the marital dissolution petition. The petition may include a proposed preliminary divorce settlement, an income and expense declaration (if spousal support or child support is sought), a detailed list of marital assets and debts, and any related child custody information.
Upon filling the marital dissolution petition, you will have to complete a court summons that will need to be served on your spouse (the Respondent) so that he/she will be notified of the pending action.
Translate Divorce Documents for Service
Contact the U.S. Embassy in the country your spouse resides in to determine if the petition and summons needs to be translated. You should hire a certified language translator to prepare a translation of the divorce petition and summons. The english and foreign language petition and summons will have to be served on the Respondent.
Service by Voluntary Acknowledgment
The easiest way by far to serve a spouse out of country is when they are cooperative and are willing to voluntarily accept service of the divorce paperwork. In this case, you can simply mail your spouse the divorce Summons, Petition and other pertinent documentation, together with a Notice of Acknowledgment and Receipt. Your spouse can voluntary accept service of the documents by signing the Acknowledgment which is later filed with the court.
How to Formally Serve An Out-Of-Country Spouse
Since the Respondent resides out of the country, service of process will likely be governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. This Convention outlines specific steps that must be satisfied in order to properly serve a Respondent abroad with a divorce petition and summons. The convention is applicable if the following requirements are satisfied:
The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad; and where the address of the person to be served with the document is known.
Hague Convention Service
Article 2 of the Convention designates one main channel for the transmission of legal documents. Each Contracting State to the convention is obligated to designate a Central Authority for processing and executing valid requests. To serve divorce papers pursuant to this Convention, you will need to complete the form USM 94 from the U.S. Marshal’s Office. Send the form along with two copies of the divorce papers and summons (including english and translated copies as mentioned above) to the central authority in the country your spouse resides. If everything is done correctly, service will be rendered and you will receive proper proof of service.
Prior to the enactment of the Hague Convention, service of process was effectuated by the issuance of Letters Rogatory (which is still applicable). The Letters Rogatory procedure allows a local court to make a formal request to a suitable court in the foreign jurisdiction for the issuance of process. This request allows the issuance of foreign summons to be rendered on the Respondent by a foreign court. The divorce petition and summons are forwarded by the foreign ministry to the local court where the Respondent resides. The local court takes all the necessary steps to arrange for service of process to be rendered on the Respondent. Most foreign countries issue a certificate of service as proof that it was completed and then provide it to the U.S. based court.
If all goes well in serving the Respondent the paperwork, he/she will be allowed to come to the United States to appear in court. If he/she cannot do so, he/she will have the option of scheduling a teleconference with the judge. From there, the proceedings will be just like any normal divorce process. The parties also have the option of agreeing to all of the issues and signing a Marital Settlement Agreement, which will eliminate the need for any court hearings.
Learning how to divorce someone who is in another country can be a stressful and energy-draining process. We hope this article has given you the tools necessary to make this process easier. For more information about filing for divorce and help with your divorce paperwork, please contact A People’s Choice at 8000-747-2780.