All You Need to Know About US Expats Overseas Divorce

Overseas Divorce – An Interview with Tracy Achen From US Woman’s Divorce

tracy-overseas-divorceAfter Tracy Achen has struggled through her own divorce and its aftermath, she made it her goal to help other women understand the divorce process and learn what their rights are. As a result, Tracy established WomansDivorce.com in 2001 to provide a unique community for women to come together and find support during all stages of divorce.
 
The website offers comprehensive information on the legalities of getting a divorce, dealing with the emotions of ending of a marriage, tips on how to survive financially, and inspiration for starting over. Other than that Tracy has written
a Divorce Guide to help women reach informative decisions and to cope with the challenges of divorce.
 
Expats Guide: Can U.S expatriates get an overseas divorce, and will the overseas divorce be valid in the
USA?

 
Tracy: The short answer is yes. Most overseas divorces would be considered valid in the United States on the basis of comity (“full faith and credit”), provided the following conditions are met: Both parties to the divorce have received adequate notice (i.e., service of process) and one of the parties was a domiciliary in the foreign nation at the time of the divorce abroad.
 
The long answer is that it’s probably not a good idea for most American expatriates. First of all, one shouldn’t get a foreign divorce if US government pensions are in issue. Some foreign courts cannot divide US government pensions (their court orders would not be recognized by DFAS). One also shouldn’t get an overseas divorce if child custody and child support are involved. The children are considered US citizens, and you want the US courts to honor or enforce your decree. These matters would probably be “revised” by US courts, which are not bound by a foreign judgment when US citizens are affected.
 
Expats Guide: Can an American expat apply for a divorce in the U.S.A while living abroad?
 
Tracy: For US civilians (non-military) living abroad, they may not be able to file for a US divorce unless they can meet the residency requirements of the state they will be filing in.
 
For military personnel, the possibilities of a US divorce are better. Some military divorce attorneys can handle a US divorce on a long-distance basis, if the divorce will be uncontested (meaning that both parties agree on everything in the divorce).
 
As far as where the divorce will be filed, military personnel may generally file in the state where they are stationed if they meet the residency requirements. If one or both spouses are active duty at the time the divorce is filed, they will need to sign a waiver of the Solder and Sailor Relief Act. The US based attorney will handle most of the correspondence over the phone or through e-mails, and documents to be signed are usually sent by a courier, such as FedEx (both parties must be willing to sign all documents needing their signature). There is the possibility that at least one of the spouses may have to appear in the US courthouse where the divorce is filed to complete the divorce, depending on the laws of that individual state.
 
Expats Guide: Can a US expatriate apply for a divorce in the US when he/she is there for holiday, and while his/her spouse is still living abroad?
 
Tracy: If the US expatriate is civilian, they can file for a divorce if they have met the legal residency requirements of the state they will be filing in during their holiday visit. This varies from state to state, so a lawyer should be consulted to find out if they qualify to file for a divorce in that state.
 
If the US expats is in the military, they can file for a divorce in the US while on leave. The divorce may be filed in the state of the legal residence of the military member; the legal residence of the spouse; or the state that the service member is stationed in. It’s important to note that The Service Members Civil Relief Act may delay any court proceedings. This act provides for a minimum 90-day delay in proceedings upon application by an active duty service member.
 
Expats Guide: Are there different regulations for Military personnel and other US expats?
 
Tracy: Some of the extra regulations in a military divorce include the Servicemembers Civil Relief Act (SSCRA) and the Uniform Services Former Spouse Protection Act (USFSPA), the 20/20/20 Rule, and the 20/20/15 Rule, as well as specific provisions required for garnishment of military pay, the Military Cobra Plan, and division of military retirement and disability pay. You can read more about the special provisions of a military divorce in here.
 
Expats Guide: What about the expat children? How and who decides with whom they will be living and where?
 
Tracy: Custody is generally determined by civil laws, and courts would like parents to reach a custody agreement without having to go to trial. If such an agreement can’t be reached, then the courts will decide custody based on the best interests of the child. This varies from state to state, but generally takes into consideration the following points:

  • Who is the primary caretaker of the child?
  • The wishes of the child if he or she is of sufficient age and maturity.
  • The quality of the child/parent relationship.
  • The presence of a stable and established home for the child.
  • Whether abusive behavior is a factor.
  • The physical and mental health of each parent.
  • The physical and mental health of the child.
  • Drug or alcohol addiction.
  • The moral fitness of both parents.
  • The effort of each parent in encouraging a relationship with the other parent.

Some states have enacted laws to help protect military personnel in custody cases. According to Military.com, “California enacted a law saying a parent’s absence due to military activation cannot be used to justify permanent changes in custody or visitation. Michigan and Kentucky followed suit, requiring that temporary changes made because of deployment revert back to the original agreement once deployment ends. Similar legislation has been proposed in Arizona, Florida, Oklahoma, Texas and North Carolina.”
 
Expats Guide: Should US expats use the services of a divorce lawyer? Should it be a local lawyer or an American lawyer?
 
Tracy: I think anyone who is facing an overseas divorce should use the services of a lawyer, especially if you are in the military. Each state has its own specific laws regarding marital status, property division, child custody and support, and alimony. It’s a very daunting task to make sure everything is covered and worded properly to protect the divorcing spouse. A skilled divorce lawyer familiar with the laws of your state can help guide you through the overseas divorce process. When choosing a lawyer, it’s always best to seek the services of an American lawyer who is skilled in handling a military or overseas divorce.
 
Expats Guide: On your ebook – ‘Divorce 101: A Woman’s Guide’ you provide tips and techniques about how to save money and protect yourself when facing a divorce. Could you please tell us a little about your book?
 
Tracy: This is a hands-on book that will give you a clear understanding of your options when it comes to separation, preparing for divorce, the legal process, financial matters, custody arrangements, parenting plans and visitation, plus much, much more.
 
Expats Guide: How US expat women can benefit from reading your ebook?
 
Tracy: In addition to the information that the reader gets about how to prepare for divorce (along with all the worksheets to help figure out the bottom line for the divorce settlement), there is also a section on military divorce. This section discusses the domicile or residency requirements for military personnel, how to serve divorce papers, and a brief discussion of military pensions and benefits.
 
There is more to consider in a military overseas divorce than that of a civilian divorce. As such, the book points out the necessity of getting an attorney who is skilled in military divorce to help you in the process.
 
Expats Guide: Thank you Tracy for taking the time to shed a light on overseas divorce, which unfortunately many US expats are facing, and for providing such important information.
 
To learn more about Tracy’s E-book please Click Here!