Long-distance relationships pose all sorts of challenges, which are exacerbated when that distance crosses international borders. Certainly, the difficulties of living apart are easier to bear when you can see an end in sight, and you have a timeline for establishing a single household. But as a lengthy separation continues, you might conclude that a reunion just isn’t in the cards. If you are ready to fold your hand, how do you arrange to divorce a spouse who is residing in another country?
The good news is that you can proceed stateside without your spouse being present as long as you qualify for divorce under the laws of the state where you are living. For instance, in New York, you can meet the residency requirement in a number of ways:
- You have been living in New York State continuously for at least two years
- You have lived in New York State continuously for at least one year and
- You got married in New York State, or
- You lived in New York State as a married couple, or
- The grounds for your divorce happened in New York State
You must state how you qualify in your filing and offer supporting documentation that proves your eligibility. If you qualify, a New York court can exercise jurisdiction, and the divorce process can proceed, whether or not your spouse participates.
Briefly, here is how you would proceed:
Meet with a Divorce Attorney — Even though your divorce will play out on your home court, choosing an attorney with international divorce experience is important. You need your filing to be mistake-free and avoid any procedural errors that might give your spouse grounds to contest the court's order. An experienced international divorce lawyer can draft a petition that addresses all your concerns and take steps to ensure the process will be binding on your absent spouse.
Serve the Petition — This is a critical step to ensure due process, so your spouse cannot object after the fact. If your spouse resides in a country that is a signatory to the Hague Convention, you must follow this treaty’s rules for service of process. The treaty simplifies the process by authorizing a central authority in each member state to receive and serve documents. However, simple doesn’t mean speedy. Typically, international process service takes between three to six months. Additionally, any failure to execute the necessary steps will void the service, so any judgment you get will not be enforceable.
A crucial step to consider is translating your documents into the appropriate language for the area where you want service to occur.
The general process for service through the Hague Convention is:
- Sending a special “letter of request” along with other necessary documentation to the appropriate central authority in the country.
- After the central authority reviews the documents for completeness and accuracy, the papers are forwarded to the local court with jurisdiction over the defendant spouse.
- The local court delegates service to an individual who serves the defendant with all documents.
- The local court sends proof of service to the central authority.
- The central authority completes paperwork to verify service was accomplished.
- The central authority forwards its documentation back to the United States to you, the Petitioner.
Meticulous preparation is key since incomplete or incorrect information can delay the service of the process for months.
If your spouse’s home country is not a Hague signatory nation, you can still effect the process via Letters Rogatory or a service agent. Knowing which processes are acceptable in the country is essential because, if the service is not valid, you run the risk of a judgment being unenforceable.
If the process is too complicated and your divorce is amicable, you can ask your spouse to waive personal service. Your spouse would file a signed waiver with the court, allowing you to send your documents by mail, email, or fax.
If you don’t have a precise address for your spouse, you can ask the court’s permission to serve by publication. This usually means having a notice printed in a local newspaper for a specific number of days. This action creates a presumption that the respondent spouse was served if done correctly.
File Proof of Service — Once you get documentation affirming service, you must file that proof of service with the court where you filed for divorce.
Wait for the Respondent Spouse’s Answer — Your spouse has the option to respond to your Petition with an Answer. This filing is the responding spouse’s chance to object to any statements in your Petition and to ask the court for certain terms in the divorce decree.
Attend Your Court Hearing — Whether or not your spouse contests any aspect of the divorce, you must appear in court, presenting yourself before the judge. Depending on the stakes in your divorce, your spouse might file a Notice of Appearance, requesting a hearing in front of a judge on contested issues. The divorce case then proceeds as any contested divorce in New York. However, if your spouse does not file an answer within the time allotted, usually 20 days, you can ask for a default judgment. This usually means getting a divorce decree on the terms you requested in your Petition.
Of course, obtaining a default judgment might not be the end of the process since you might have difficulty enforcing certain terms of the court’s order with your spouse living overseas. But that’s the topic for another article in the near future.
If you have questions about international divorce, schedule a consultation with a knowledgeable attorney at Bikel Rosenthal & Schanfield.