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Last Updated on: 2nd October 2023, 06:51 pm
Initiating the process of filing for divorce while your spouse is outside of the United States can be difficult in some cases if there are jurisdictional or international laws that must be navigated by the filing party. However, it is not impossible and divorcing a spouse who is not a US citizen or divorcing a US spouse who lives abroad, is done all the time. It is always best in this case, however, to seek the advice of your divorce attorney who understands the nature of international and jurisdictional issues that might make your case less than simple in process.
Process of Filing for Divorce
Regardless of which type of divorce a person is seeking, the second party to a divorce must still be served the Complaint of Divorce. If the Complaint is filed in New York, for instance, the defendant must also be served the Summons. This will vary from state to state, some states require only the Complaint of Divorce be served.
If your spouse is in agreement to the divorce it is uncontested and the process can be quite simple. They can waive their right to the personal service of process meaning they are waiving their right to be hand served the Complaint. They can sign a simple affidavit stating they have been served, which you can take to the court and proceed to the next phase. If your spouse cannot be located or they insist that they want to be served via personal service of process, this is where it can get tricky and complicated.
The Hague Service Convention
Does your spouse live in a country which falls under the Hague Service Convention? The Hague Service Convention stands for “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.” It is a treaty which allows for the service of process of legal documents between one state and another without the use of consular or diplomatic channels.
The Diplomatic Process
If the party to be served with a Divorce Complaint does not live in a country which falls under The Hague Service Convention, then a diplomatic process utilizing a “letter rogatory” is used. For example, Jane in the US wishes to divorce John in Brazil. Jane files a summons in a US court, then petitions a court in Brazil by means of a “letter rogatory” to serve the service of process on John in Brazil.
There can be ribbons of red tape, delays, requests for further documentation, all of which can prove to delay the process if one isn’t aware how it’s done and what is required. In some cases, courts can forward service of process requests to a foreign ministry or a foreign court directly, however, this depends on the relationship between the two countries, and if they have open channels or provisions to work with each other in judicial and legal matters. Otherwise, there can be as many as four entities which handle and move your paperwork around, and on to its final disposition which can sometimes take up to one year or more.
Though it may sound overwhelmingly complicated, most of the time it is only a process which takes a little filing and a little waiting. Other times, it can be complicated and time-consuming.
Only your attorney is able to advise you how your personal international divorce process should be handled. They know how to ask the correct questions of you, know the strategy that will work best for your case, understand if your case should be handled in the US or in another country, be able to navigate international laws and judicial procedures and answer any questions you might have.