In today’s mobile society, it is common for parties to have a second home in another state or country. Many people who are divorcing think this is outside the Indiana divorce court’s jurisdiction because it is not within the state. That is not the case, although it does create several problems for litigants and their attorneys. All marital property brought into the marriage, acquired during the marriage to the date of filing, is marital property for the trial court to divide.1 This blog covers the basics of how homes and other real property located in other places are addressed in divorce.
The single biggest challenge is usually getting the property properly valued. If an appraisal is done, the appraiser would have to come to Indiana to testify at trial about the value, unless the court allows him/her to testify by phone. Normally, courts want live witness so they can judge their statements in the context of their body language. Without the appraiser, the appraisal is hearsay and is not admissible. Creative attorneys may work together to agree to an appraiser to eliminate this issue. That said, when the property is located in another country, an additional layer of complexity is added. Is the country using dollars? If not, the appraisal has to be adjusted and accounted for in US dollars. In addition, it is practically impossible to get an appraiser from another country to court to testify. Presupposing the court allows telephonic testimony, do you need a translator or translation of the appraisal by a certified translator? All of these are issues skilled domestic counsel can navigate, but it must be done so carefully to avoid your appraisal of value from being excluded at trial.
With that, it may seem the matter is solved. Actually, this is just the beginning. If the house is to be sold or the property of another, you may have to register your Indiana divorce decree in another state or hire an attorney there to prepare a quitclaim deed. Ultimately, this may require another attorney in that foreign state to assist. Fortunately, the Full Faith and Credit Clause of the United States Constitution requires all other states to recognize orders issued by any other state. Thus, this process is sometimes time consuming, but a common issue faced by skilled divorce counsels. Lastly, there are a few quirky real estate laws in other states that my have to be considered with real estate located in other states in the United States. But again, skilled divorce counsel can navigate these waters.
When the real estate is in another country, a whole new set of issues arises that has to be analyzed and determined well before trial. For instance, if there is no treaty, pact or agreement between countries, the fact that it is awarded to one spouse in making a just and equitable division by and Indiana trial court may not matter if that country does not recognize orders of the courts of the United States. In addition, real property laws are often very different in other countries and may not translate into American law. This requires (assuming the country will recognize and enforce a United States divorce order) presenting this evidence to the Indiana divorce court so it can issue an order that will be understood and able to be enforced in the foreign country. Again, skilled divorce counsel will have handled such issues and be able to navigate this legal hurdle for you.
We hope this blog helps you understand that all real estate—even that in other states and countries—is part a part of the one marital pot2 the trial court must divide in a just and reasonable manner. The presumption is the trial court will divide this equally (all of what you own, minus what you owe, divided by two), unless rebutted.3 That said, real estate in other states and countries can present significant issues to deal with so you should carefully select seasoned divorce counsel. This blog was written by attorneys at Dixon & Moseley, P.C. who handle complex divorce cases with unique assets throughout the state. This blog is written for general educational purposes. It is not intended as legal advice or a solicitation for legal services. It is an advertisement.