Question: I was married in Colorado, but we have lived in Mexico for 6 years. My wife now wants a divorce and I’m currently back in Colorado.
In Mexico, we own a piece of property, which is in both of our names, but the condo on the lot was never put in my name.
Do I have any rights to this home though my name isn’t on it, and it’s in a foreign country? Does it matter that all my investments are in Mexico?
As far as custody goes, my wife has a drinking problem and we both have physically assaulted each other once. How will this affect my chances for custody?
Answer:
You have quite a few questions here. So I am going to break them down as follows: who has jurisdiction in divorce (Colorado or Mexico)? if you filed in Colorado, how will the Court treat assets you have in Mexico? how will past domestic violence affect custody determinations?
Each of your questions should be directed to an attorney licensed in Colorado, as divorce laws vary from state to state. Although I do not practice in Colorado, Cordell & Cordell has many attorneys licensed and located in Colorado who would be happy to assist you.
Jurisdiction
Jurisdiction refers to which Court has the authority to hear your case. Without going into a complicated explanation of jurisdiction laws, I will say that more than one jurisdiction can have jurisdiction of the case and the one that should be hearing your case will depend on you and your wife’s contact with the location and which location is most convenient. Because more than one location may be appropriate, you need to discuss your case with an attorney right away as choosing the Court to hear your case is often a strategic decision. Because I do not know the laws of each of the locations, I do not know which laws would be more favorable to your position.
You and your wife have had contacts in Colorado and Mexico. How long have you resided in Colorado? Are your children and your wife still in Mexico?
Because your case includes custody and placement of children, you and your attorney need to discuss the effect of the “home state” determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Colorado jurisdiction laws. Generally, the jurisdiction where your children have resided for the past six months is the jurisdiction that should hear custody and placement disputes. However, the UCCJEA controls cases WITHIN the United States. I do not know if there is an equivalent law in Mexico. If all of your assets and your wife and children are in Mexico, Mexico may be the appropriate jurisdiction to hear your case. You need to contact a domestic litigation attorney immediately as time limits are very important.
Assets
If your case is heard in Mexico, Mexico property laws will control how assets are valued and whether you have any interest in property that is only in your wife’s name.
Assuming jurisdiction is established and your case is heard in Colorado, the Court may not be able to exercise jurisdiction over the properties, but it would have jurisdiction over your wife. You need to discuss marital property laws in Colorado with your attorney. The Court could determine the value of the assets and divide the value applying Colorado property laws.
Domestic Violence and Custody
Although I do not know the laws in either jurisdiction, most States have domestic abuse restraining order provisions that would prohibit the abuser from coming in any contact with their spouse and possibly their children. The question in most domestic abuse restraining order cases is whether or not the defendant has abused the spouse or the children. Some states do not have a “clean hands” provision which would mean that a restraining order can be granted even if the petitioner was also violent. Since both of you have been violent, technically both of you may be able to obtain domestic abuse restraining orders. You need to meet with an attorney immediately as your wife may seek a domestic abuse restraining order which would have a serious and adverse impact between you and your children.
If neither of you seeks a domestic abuse restraining order, the abuse will likely come into play when the Court determines custody and placement. Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the child will spend with each parent. When determining custody and placement of the children in the United States, the best interests of your children is the paramount goal for the court. Most states (I do not know about Mexico) have a set of factors the Court applies to determine the best interest of the children. Interspousal abuse is often a factor which would weigh against the perpetrator.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.
