It’s a sad fact that many marriages end in divorce and when children are involved things can often become complicated. The problem is compounded even further when the couple concerned are expats or originate from different countries.
A recent decision in UK court highlighted the difficulties faced when one party wishes to return “home” and take the children with them.
Jeremy D. Morley, a family lawyer based in New York shares his top ten tips with our readers to help them avoid potential problems relating to a breakdown in their marriage and arrangements for custody of the children.
- 1. Before you move overseas, realize that if you have children in a new country you may find yourself trapped there. An example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus didn’t work out for Angie. In fact, she hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention on the Civil Aspects of International Child Abduction, Angie will be in big trouble if she takes the child back to the States without Gus’ permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she’s stuck there.
- 2. If you make a deal with your husband or wife that you’re going overseas just for a trial and that you’ll return if it doesn’t work out – Get it in writing. Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may not work. A foreign court handling your child custody case may well that it doesn’t care what your deal with was with the other parent; it must only consider what’s best for the kids.
- 3. Before you switch residences, consider how it might impact a possible divorce. An example: Arnie and Alice in America signed a prenuptial agreement before they married. Not only that, but Arnie made pretty sure that it was watertight not only by having it drafted by his own lawyer but also by insisting that Alice have her own independent lawyer, and by putting term sin the agreement that are pretty fair to Alice. Arnie feels secure. Then they move to London, England oblivious of the fact that their prenup may well be unenforceable in a divorce court in England. English courts still hold that prenuptial agreements are against public policy and, while this policy is supposed to be changing, it most certainly hasn’t changed yet. To make matters much worse for Arnie (who had bags of money before the marriage and thought he was fully protected by the prenup), there is no distinction in England between marital property and separate property acquired before the marriage. He could be blowing half of his pre-marriage assets just by moving the family to England.
- 4. Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So if you are a “trailing spouse,” consider the following:
- Don’t sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly it will indicate that it continues to be your “domicile” (the place you live in indefinitely which remains as your domicile even if you move temporarily to another place remains your home. Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move “back home.”
- Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.
- Keep your network of friends and family at home.
- 5. If you’re overseas and are “planning” to get divorced, be as strategic as possible. Plan your moves. Consult someone who really understands the big picture. Figure out where it’s best for you to be at the time you tell your soon-to-be-ex that it’s all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don’t leave without the evidence. It’s very frustrating when a client tells me a story of the other spouse’s gruesome physical abuse and shameless hiding of marital assets and when I ask for the evidence I’m told that it was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.
- 6. If you’re feeling stuck overseas and have children with you, don’t just bolt for the (airplane) door with the kids and run ‘back home’ to the States. Plan things out first. If you take the kids you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you’ll probably be forced to return by an American court – and then, to completely add insult to injury, you’ll probably have to pay your spouses’s legal fees and travel expenses as well as your own. When you return your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult knowledgeable international family law counsel sooner, rather than later.
- 7. On the other hand, if it’s your spouse who’s feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing. Some are pretty obvious: Be kind; be understanding; and don’t stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she’s making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.
- 8. If you’re overseas and pregnant, and not 100% confident that you’ll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will be Sweden or Saudi Arabia – and that can create terrible problems if you want to take your baby “back home.”
- 9. Don’t assume that the local authorities won’t help. So many times, expats feel that the local social welfare agencies won’t understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent and you should try them. Plus, an American court in a Hague Convention case won’t accept your defense that returning a child to the foreign country will put the child in grave risk of harm unless you can show that the foreign support services are unable to provide the needed protection.
- 10. Local divorce lawyers may not be your best bet. They want your business. They have an incentive to encourage you to bring your lawsuit in the place where they practice and they usually don’t know anything about the laws in other places. An international divorce lawyer, who consults with local lawyers as appropriate, can give you much more objective “big-picture” advice.
This article first appeared on http://www.international-divorce.com and has been re-posted with their permission.