If you have decided you want to get a divorce and your spouse is not in the United States, how do you serve your spouse “papers” while she or he is not in the country?
This is an important issue to address. Why? Your divorce decree will not be considered legally valid unless your spouse has been legally notified of the divorce proceeding.
As you might expect, there is a process to do this. It hinges on a term that is called “jurisdiction”. What does jurisdiction mean? In simple terms it translates into which state’s (or province’s) laws will govern your divorce process. Once the state of residence is defined then the laws within that state will determine how the process will be carried out.
There are at least three different sets of laws that will apply to this situation:
- International law
- Divorce law of your state
- The law of the jurisdiction where your spouse is located
Given international laws vary by country and laws vary by state, this requires some research to make sure you get the details right.
Some simple steps to take are:
- File the divorce petition and related summons with your local court. Many times this is the state you live in or where most of your marital assets are located.
- Figure out where your spouse is currently residing. Without this knowledge you cannot serve your spouse divorce papers (often referred to as “service of process”.
- Determine whether the “long arm statute” of your state’s laws will allow you to connect to the international location where your spouse lives. Through this understanding you will determine whether your local court (in your state) will have jurisdiction over your spouse or not.
- Prepare an affidavit that waives the “service of process”. Send this to your spouse with a copy of the summons. Request your spouse to sign the papers at a U.S. Embassy or in an office of a consulate. Be sure to have a notary public stamp the affidavit with her or his seal too. This will provide you the evidence to makes sure your I’s are dotted and T’s are crossed.
- It is important to note, if your spouse authorizes the waiver of the service of process then you do not have to worry about the laws of the location where your spouse resides. If your spouse does not sign the waiver then you have to research the laws in your spouse’s location to determine how you need to service the divorce papers. As noted above, each country and state varies in this regard. An important issue to uncover is whether the country your spouse resides in is a member of what is referred to as the Hague Convention. The Hague Convention is a multilateral treaty that addresses international service of process. Another important point is to determine whether the divorce papers will need to be translated into the local language. Since other people (process owners) will need to take part in the process (e.g. notary) they may need to read the divorce papers in their native language.
- Once all of this has been ironed out, you can send the summons to your spouse by the method required by the international country. The most reliable method to send information is known as sending it by “Letters Rogatory”. This terminology translates into a formal request from a local court to a foreign court for some type of judicial assistance. The most common remedies sought by Letters Rogatory are service of process, noted above, and capturing relevant evidence. It is important to note sending documents by Letters Rogatory is only available if the international court is a member of the Hague Convention. Otherwise, other methods have to be identified to serve papers (e.g. registered mail, return receipt requested, etc.). If available, letters rotatory, by definition, is more reliable than other methods. Some countries require an overseas agent or a central government authority to guarantee the delivery of the divorce papers.
About the Author
Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.
For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.
If You Have a Question
If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:
- unfold, analyze and repackage their financial life so they are well positioned after their divorce
- preserve the value of their business or marital estate
- continuously strive to provide a return on our services
- build balanced financial solutions grounded in evidence
- find ways to make our client, and at times both parties, money through the process
- design their divorce to work for them and their family’s life
- provide mental clarity to make decisions
- reduce the total process time from start to close
- minimize the stress and unpleasant memories that can last a lifetime
As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.
This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.