Divorce matters are often stressful and trying times for a family that is undergoing radical changes. Increasingly common, whether due to the mobility of individuals, an increase in remote employment, or otherwise, are divorces that involve some aspect that creates a multi-jurisdictional or even international element. Common examples include couples who are divorcing who have different citizenship, a couple where one spouse has a job placement overseas for a period of time, or a couple who may own property in multiple countries. Each of these situations creates an added layer of complexity in resolving the divorce, whether the multi-jurisdictional element concerns the custody of children of the marriage or concerns property division. In these situations, it is particularly important to have legal counsel familiar with the issues that arise in multi-jurisdictional and/or international divorces. Below this blog covers several key issues that one may encounter in these situations.
Dividing Property in a Foreign Country: Indiana subscribes, under the Dissolution Act, to the “one pot” theory where all assets brought into the marriage or acquired during the marriage up to the date of filing of a petition for dissolution of a marriage are assets of the marriage the court can divide. So, we know that property in a foreign country is part of the marital estate that needs to be considered, but how do we accomplish this task from a legal standpoint?1 The issue is how to enforce the Indiana Court’s order in a foreign country. Almost without certainty, this will require retaining an attorney in the foreign country. Wise domestic counsel may want to do so before the divorce trial to ensure the right type of evidence is put onto the record to effectuate obtaining an order most likely enforced in another country. Knowing the foreign country’s recognition of an Indiana divorce decree in advance is key and may allow counsel to seek a different division. Thus, foreign real estate and other interests are divisible by the trial court but may not actually wind up going to the person to whom it is awarded unless the divorce decree can be enforced.
The Hague Conference on International Law. That said, this problem has long been recognized. In several areas of international law, the Hague Conference on Private International Law passed laws to address certain chronic issues, including the Hague Convention on the Recognition and Enforcement of Foreign Judgments and Commercial Matters in 1971. Unfortunately, there are few signatories to this treaty and it has been ratified in only a few countries in the Middle East and Western Europe. However, if a country has ratified the Hague Convention, then some issues regarding international complexities, including property division, child custody, and recognition of judgments from the United States, may be more easily resolved.
Other International Issues. The ordinary way such divorce awards are enforced is by any given country’s foreign judgment act, which will specify the procedures for enforcing a foreign judgment. Where foreign languages are at hand, a certified translation of the order is required. Fortunately, several countries recognize other countries’ foreign judgments. Oftentimes there is other caselaw or other mechanisms to attempt to enforce a foreign judgment if there is not such recognition. However, this is often a long and tedious process that may require litigation in a foreign venue. Despite the expense that may be incurred, it is critical to have counsel that understands the implications that international elements may have on a divorce. For example, without careful consideration, custody determinations entered by an Indiana court may not be honored by a foreign jurisdiction. That is, if a parent residing in the United States allows a child to go out of the country with the other parent, and the other parent does not return the child voluntarily, the parent residing in the United States may find himself or herself having a very difficult time getting the child returned to the United States if the proper precautions are not taken.
We hope you find this blog post useful in providing information about Indiana divorces involving property located abroad and custody matters with interstate or international dimensions. Dixon & Moseley, P.C. advocates handle complex divorce cases with international dynamics, including international custody disputes and property disputes, through Indiana. This blog post is written as general information and is not legal advice or a solicitation for services. It is an advertisement.