Frequently Asked Questions About International Family Law Issues
International law is a complex area. Most matters concerning legal actions by citizens of different countries are controlled by various treaties and treaty obligations. However, in the United States, unlike other countries, the family law differs from state to state and is not a federal law. For that reason, there is no interpretation of the requirements of some of the international issues. However, for the most part, the various states have similar procedures which they use in international matters. Here are some frequently asked questions.
I Was Married in Another Country, Is That Marriage Valid Here?
Yes, even tribal marriages, contract marriages, and marriages by certain customs and rituals have been recognized as valid marriages. A general rule, but not absolute, is that a marriage which is valid in the place where it occurred is valid in North Carolina. Multiple marriages (usually one husband and multiple wives) are not valid for any of the parties to the marriage other than the first couple to marry.
I Was Divorced in Another Country, Is That Divorce Valid Here?
Divorce in a foreign country is never to be taken for granted. While we can make general statements about the validity of a foreign divorce, you are encouraged and strongly advised to consult with an attorney in both the foreign country and North Carolina to determine whether the divorce will be recognized.
Below are some generalized scenarios regarding divorce in a foreign country. These generalizations should not be relied upon as your situation may differ.
If you and the spouse were both residents and citizens of the country where you divorced and were both present and given an opportunity to be heard, in most cases the divorce will be recognized as valid in North Carolina. This fact is especially true where the divorce was entered many years prior to the party who was granted the divorce moving to the United States. However, if there was no due process or the issues surrounding the divorce were not adequate to guarantee that both parties had a full and fair opportunity to be heard, the divorce is open to review.
If you and your spouse were married in a valid marriage in a foreign country and one spouse remains a resident of the foreign country, so long as the spouse residing in the United States was provided with acceptable service of the divorce action or accepted service as allowed, and both parties were given a full and fair opportunity to heard, the divorce will be considered valid. This is particularly true where the spouse located in the foreign country never left that country and has complied full-with the laws of that country.
If you and your spouse were married in another country and both returned to that country for a divorce, which was valid in all respects under the laws of the foreign country and you and your spouse either both consented to the divorce or were both allowed a full and fair opportunity to be heard, then, in most, but not all, cases your divorce would be accepted as a valid divorce. This situation is more common when both of the parties married under the laws and customs of the foreign country, remain citizens of the foreign country, and had reasons to want to have the divorce under the laws of the country.
If you or your spouse were married in another country but only one of you travels without the other spouse to the foreign country where you were married for the purposes of obtaining a divorce the situation will merit further information before the North Carolina court can rule on its validity.
If you or your spouse travels to a country for the purpose of obtaining a divorce, but neither you nor your spouse are now or ever have been a resident or the country, the divorce will not be recognized in North Carolina and you will be required to obtain a recognized divorce. Any marriage after an unrecognized divorce will be considered a bigamous marriage.
My Child Went to Visit the Other Parent in a Foreign Country and the Other Parent Did Not Return the Child as Required in the Custody Order, What Should I Do?
This situation is a very difficult situation, even with the current treaty obligations in place. While the US is a signatory to “Civil Aspects of International Child Abduction” and to the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters “ it has not signed other portions of the Hague Convention. These treaty obligations set out when a child must be returned to the child’s place of habitual residence. These matters are very complex and you are urged to conduct a consultation with an attorney in both the state in which you live in the United States and the country in which the child is presently located. There are time elements which come into play in such cases and the faster you move to try to retrieve the child the more likely you are to succeed.
Not every country has signed the Hague Convention and those countries will be operating under treaty law with the United States regarding legal actions. In those cases it is important to find out what the law is in other countries and how to proceed. You are strongly advised to contact an attorney for further advice in this very difficult situation.
I Want to File an Action Against My Spouse Who Now Lives In a Foreign Country, How Do I Go about Serving the Other Party?
As stated above, service of process in a foreign country is governed by treaty obligations. The United States has signed the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters “ and the requirements of the statute are set out by each country which is a signatory. If a country is not a signatory to the Hague Convention, then that country and the United States will be governed by treaties between the two countries. Many times service is required to go through a central authoirty and will require that the entire document be translated into the language of the receiving state. Many times this information can be found on line or though the United States Consular office in the foreign country, or through the Consular office of the other country in the United States. Again, this will most probably require the assistance of an attorney.
I Have Property in Another Country That I Believe is Marital Property and I Need to Divide, Can I Do That From North Carolina?
Yes and no. While the courts of North Carolina have no authority to require any action to be done outside its borders, it can order a person who is subject to the jurisdiction of the North Carolina Courts to do an act in the foreign country (or even in another state in the United States). For example, you and your spouse own a vacation home in Belize. As part of the property distribution in your divorce action, you are awarded the Belize vacation home. The court can order your spouse to sign any and all documents necessary to transfer the Belize property to you. It cannot order the Register of Deeds in whatever county or its equivalent jurisdiction in Belize may be, to transfer the property in its record books to you.
International law is a complex and difficult area of law. If you have an issue involving international law it is strongly recommended that you seek legal counsel for further information and assistance.