Divorcing A Spouse Who Lives Outside the Country


Given the diverse population of the Bay Area, it’s not unusual that couples get married, then one spouse decides to return to his/her country of origin or another country altogether. It can be for the same reasons that any couples get divorced, including a job opportunity abroad, and the other spouse does not want to accompany his/her mate. It’s not unusual that one spouse loves living in the US while the foreign-born spouse never adjusts to the American lifestyle. The divorce process itself is the same as for divorce within the US; however, the rules to serve your spouse with notice of the divorce proceedings are different, generally determined by the laws of individual countries.

There are also a few caveats, including residency requirements and military service

  • Active-duty service members are generally protected from divorce proceedings in most cases. Under the Servicemembers Civil Relief Act (SCRA), U.S. service men and women cannot be sued or begin divorce proceedings while on active duty or for 60 days following active duty (at the discretion of the court). This is so military service members may devote their time and energy to defending the Nation.
  • In order for a court to give you a divorce, you also have to meet certain residency requirements–you must have lived in the state for a certain amount of time before a court in that state will issue a divorce decree. It’s not necessary, however, to return to the state in which you married to get divorced.
  • California requires that you must have lived in the statefor the previous six months; you also must have lived a minimum of three months in the county where you plan to file the divorce.
  • If you have recently moved, it’s possible that you don’t yet satisfy the residency requirement and may need to wait to file for divorce.
At DP Legal Solutions, our clients fill out our workbooks, and we prepare the legal documents. Once we’ve completed these, we notify you to come in to review and sign these; it’s at this time that you generally also pay the filing fee. We then file your case with the court.

Your spouse has the option of waiving service

If your spouse agrees to waive service, he/she will need to sign an affidavit to that effect. The affidavit should be available on the court’s website as a downloadable pdf file. Another option is to send your spouse a copy of the affidavit. Once your spouse signs the affidavit, we file it with the court.
  • Getting your spouse to waive service greatly expedites the divorce process because it immediately gives the court power over your spouse. If there are no children or property to divide, this greatly
  • If, however, your spouse does not agree to waive service, you will need to arrange personal service in the foreign country.

Making service in a foreign country

If you need to make service in a foreign country, then you need to abide by the laws for personal service in that country.
You can find rules for specific countries by visiting the State Department website and clicking on the country on a map, located here.
  • Many countries are parties to the Hague Service Convention. Under this convention, participating countries create a central authority that accepts all incoming requests for service. An officer in the foreign country makes service and then sends a certificate of service back to the US.
  • Some signatories to the Hague Convention allow you to use international certified or registered mail, with the return receipt requested.
  • In other countries, you will need to go through a consulate in the foreign country.
Translate the document, if necessary. Even though your spouse speaks English, you may need to have the documents translated to satisfy the requirements of the foreign nation. The court should tell you if this is necessary.
File proof of service. If you served papers by international mail, we file your return receipt with the court to show that service was made.
Receive your spouse’s response. If your spouse is properly served in the foreign country, then they need to file a response to your divorce petition within a certain amount of time. Generally, your spouse will file an “answer” and send you a copy.

Uncontested Divorce: Agreement on division of property and custody

At this point, the Divorce becomes analogous to that where both parties live in the US. If both spouses are in agreement about division of property, child custody and a parenting plan, it’s an Uncontested Divorce, and it’s a matter of working out the details—complicated now, of course, by distance. We help our clients through the entire process.
Are you trying to Divorce a spouse who lives in another country? Schedule an appointment with DP Legal Solutions today: 510.346.5686.

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