Can I get a divorce in the U.S. if we now live overseas?

Divorce Attorney Angela FoyQuestion:

I am a U.S. citizen and married an Indonesian woman in the U.S. We have spent the past 8 years living overseas with our son.

Can I get divorced in the U.S. or does it have to be in the country we now live in (Malaysia)? What other issues does an international divorce bring?

 

Answer:

I cannot compare or contrast how the laws of Malaysia may differ from Wisconsin on assets, maintenance, support, or even custody and placement.  I know how Wisconsin’s law may affect you, but I do not know if they are different than Malaysia.

However, the first question is which laws you could use. Most likely, regardless of where you proceed with the divorce, the laws of Malaysia will continue to govern the custody and placement of your minor son, since that is currently his home or as long as the child, their mother, or you continue to live there.  I do not practice substantial international law; I am not familiar with the laws governing families in Malaysia, so I can only speak in generalities.

In order to file for divorce, you must meet the jurisdiction requirements of the country, state, and county that you are filing in.  In order to file for a divorce in Wisconsin, you must be a resident of the state for 6 months.

Beyond that, you must also be a resident of the county in which you file for 30 days (this is not usually an issue if you have been in the state for 6 months, but it prevents “forum shopping” between counties). As another alternative, you can file for a legal separation after only 30 days of residence, and that separation can then be converted to a divorce.

Additionally, jurisdiction over custody and placement are more heavily regulated.  The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a federal law in the United States that requires that only states that are the “home state” of the child can have jurisdiction over the issues of custody and placement.  Generally, the “home state” is where the child has lived primarily for the last 6 months or longer.

Another significant consideration for you is the relationship between the courts. For example, if you get divorced in Malaysia and then need to enforce the agreement in the United States, or vice versa. If you move back to Wisconsin, Wisconsin will accept and enforce a foreign judgment.

However, if you are able to obtain custody and placement orders outside of Malaysia, I am not sure that Malaysia would enforce them. The purpose of the Hague Convention on the Civil Aspects of International Child Abduction was to secure the prompt return to their place of “habitual residence” children who were wrongfully removed to or retained in another contracting country.

The convention was designed to keep the courts in the abductor’s country focused on getting the child back as quickly as possible and letting that home country become the forum for deciding any substantive custody or placement issues. I have not been able to find any substantiation that Malaysia is a member of the Hague Convention, and thus, I do not know that it would help enforce custody and placement orders.

If you and your wife agree, it may be best for you to relocate and establish residence somewhere else. However, if she initiates an action, you may not have a choice. I do not practice in Malaysia, so I cannot inform you as to the country’s specific laws.

I recommend that you consult a domestic litigation attorney in your jurisdiction and in other jurisdictions in which you could soon qualify to file and make the comparison. Cordell & Cordell has divorce lawyers in Wisconsin, and we would be happy to discuss your case and filing requirements with you.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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