FindLaw KnowledgeBasePublished: 2013-01-18
When a couple is divorcing, there are many factors to consider. Who will continue to live in the home? How will other assets be divided? Will children live with one parent or go back and forth between homes? While these factors can often be complicated among two spouses from the United States, the issues become more complex when the laws of another country also come into play.
Recently, a couple who had been living in Texas obtained a divorce in Harris County district court. In this case, the wife was originally from India, and moved to the United States shortly after marrying in 2006. Some years later, the husband filed for divorce in Harris County, stating there had been an irretrievable breakdown of the marriage.
An interim order was issued by the court, prohibiting either one from going to the other’s home. In addition, the husband was required to pay for certain bills, including house and car payments, through July 2010. In August 2010, the wife returned to India, where she filed a “petition for restitution of conjugal rights.” Although the wife had previously filed a counterclaim in the U.S., she asked her attorney to withdraw the claim once she filed the petition in the Indian court system.
After withdrawing her counterclaim, the wife argued the Harris County district court no longer had jurisdiction to hear the case. Consequently, she contended that a divorce decree issued in the U.S. would not hold water in India. A family court in India agreed with her assessment and ruled that she could continue to live with her husband.
Thereafter, the Bombay high court heard the case and disagreed with the lower family court. The high court ruled that the wife could not use a petition for the restitution of conjugal rights in India to override a divorce decree already issued in the U.S. court system.
Factors to consider when two countries are involved in a divorce
These issues can arise under a variety of circumstances — if the couple is living in a different country, if one of the spouses is a citizen of a different country or if one of the spouses is a dual citizen. In such situations, establishing jurisdiction in a certain location is key. Generally, the location in which the petition for divorce is first filed will have jurisdiction going forward. This can be particularly important if the couple is living in two different countries at the time. Participating in the process can be difficult for the spouse living abroad, particularly when there is property to be divided in other countries.
Child custody issues are often some of the most difficult to determine when spouses live abroad. Guidelines for divorcing parents in different countries have been established by the Hague Conference on Private International Law; however, these issues continue to be complicated to resolve.
If you are facing issues due to a multi-country divorce, consulting with a skilled Harris County family law attorney will ensure your rights are protected.