The Walters Gilbreath, PLLC Blog

Foreign Marriage Contracts & Divorce

by Raya Jackson on May 15, 2017

foreign premarital agreementsWith the constant rise of the amount of immigrants coming to the United States, it makes sense that there will be a rise in the examination of foreign marriages and foreign marriage contracts. The truth is, most countries allow premarital agreements; they are usually called prenuptial agreements, antenuptial agreements, ketubahs, marital regimes, etc.

Will the U.S. ignore your Marital Agreement from China, India or Brazil ?

Premarital agreements tend to address what will happen with property in the event that the marriage ends in divorce or even death. In many countries abroad, it is tradition to have clauses regarding dowries, custody, etc. included in marital contracts. While many couples meet one another in the foreign country, due to the rise in online dating, some American people are finding their future spouses online; these future spouses may live in another country. In cases such as these, the couple typically chooses to adopt an American premarital agreement to substantially increase the likelihood that it can and will be enforced in an American court. So what do we do with premarital agreements once a couple that was married abroad move to the U.S., and seeks a divorce? Will the state court acknowledge that marriage? If it does, will it also acknowledge and enforce your marital agreement or contract that you made with your spouse in a foreign country? This blog will go into these very issues and give you information so that you will know what to expect if you ever file for divorce in the U.S. after being married in a foreign country.

What is it like getting married abroad?

Typically, the U.S. embassy or the consulate won’t be able to perform any marriages in a foreign country. Instead, the law of the foreign country is applied and local civil or religious officials will perform the marriage. If the marriage is conducted in a manner that is in accordance with the law there, the marriage is likely to be recognized as valid. To double-check if the marriage will be recognized in the U.S. state that you wish to be divorced in, contact the state’s Attorney General. It may also be useful for you to complete a Certificate of Witness to Marriage (Outside of the United States) to help demonstrate the marriage’s validity.

More About Foreign Premarital Agreements

There are two main categories for foreign premarital agreements : Prenuptial Agreements and Religious Agreements. Typically, if you are concerned with the protection of property from a spouse in case of death or divorce, you elected a prenuptial agreement instead of a religious one.

Prenuptial Agreements

  • Prenuptial Agreements are marriage contracts that determine the distribution/division of property should the marriage end by divorce or death.
  • These agreements are just like a Final Divorce Decree. Imagine that when you get married, you go ahead and draft and sign a Final Divorce Decree that is only valid if you divorce. This is just like a premarital agreement.
  • These agreements should drafted by an experienced and licensed attorney to raise the likelihood that a U.S. court will enforce such agreement.
  • Premarital Agreements are different in some counties; in some countries the agreements are only optional and can be overridden if the court finds that it is in the best interest of justice (i.e. Mexico).

Religious agreements

  • These type of agreements are quite common.
  • Since the U.S. is a nation that must separate church and state, the courts that have enforced religious agreements tend to not allow the agreements to interfere with the jurisdiction of the secular court to divide property or grant alimony/spousal maintenance.
  • Example : The basis for marriage under Islamic law (Sharia) is a marriage contract, called mahr or sadaq. The contract is formed between the prospective married couple before they get married. The marriage is official when the couple and their witnesses sign the contract in the presence of a sharia court official. Typically, the contract will delve into the division of property but it can include language regarding what happens to the dowry in the event of divorce, custody and possession of minor children, and even a spouse’s ability to leave the country. It is important to note that a U.S. court is unlikely to enforce those provisions and any like it. See In re Marriage of Dajani, 204 Cal. App. 3d 1387 (Ct. App. 1988) where the parties were married by proxy in Jordan. The agreement for Mr. Dajani to pay Mrs. Dajani a dowry of $1,700.00 was not enforced as the court of appeals held that, “prenuptial agreements which – facilitate divorce or separation by providing for a settlement only in the event of such an occurrence are void as against public policy.”
  • An Opposite Example : In 2002, New Jersey enforced a mahr agreement that was part of the Islamic marriage license in Odatalla v. Odatalla, 810 A. 2d 93 (N.J. Super. Ct. Ch. Div. 2002). The court reviewed videotaped evidence that showed the families of the spouses negotiating the terms and conditions of the agreement; the parties were shown reading and voluntarily signing the agreement. The court held that it could uphold the mahr agreement by relying on contract law; there was no reliance on religious policy, theories or practices.

Is it possible to make your Premarital Agreement more enforceable?

Actually it is. Section 3(a)(7) of the UPAA states that that parties may have contracts regarding “the choice of law governing the construction of the agreement.” These choice-of-law provisions are quite common in contracts in the U.S. since people tend to move throughout the country, where the laws may be different. On the other hand, some foreign countries tend to not need the choice-of-law provisions since their law is applied throughout the entire country.

However, if the married couple has not lived in the country that they were married in and the agreement was drafted a while ago, the court may apply the law of the state that the divorce was properly filed.

If you have a foreign marital contract that has a choice-of-law provision, it is likely that a U.S. court will follow it.

  • To be effective, choice-of-law provisions have to provide for the application of substantive and procedural law of the foreign jurisdiction. Since many foreign agreements lack this clause, the agreements will not be upheld 100% of the time.
  • To increase the likelihood that a foreign marital agreement will be enforceable in the U.S. the parties should be represented by independent legal counsel. Do NOT rely only on a notary.
  • Be sure that both parties have fairly and reasonably disclosed all assets and liabilities prior to the signing of the agreement.
  • The premarital agreement should include a choice-of-law clause that applies to the construction of the agreement and the substantive law of the selected forum. The parties may also select a dispute resolution process such as arbitration or mediation.
  • Your attorney should have the premarital agreement translated if one of the parties does not speak the language of the country and require that this party acknowledge in writing that he or she understands the meaning of the agreement.
  • Videotape the execution of the agreement and record the parties stating that this agreement was not procured by duress or fraud, that they understood the contract, and that they had the capacity to sign the contract.
  • If possible, get an American premarital agreement/contract, especially if you anticipate moving to the U.S.

What are the steps for getting divorced if you were married abroad?

STEP 1: Find your spouse’s current address. You will have to give your spouse personal notice that you are filing for divorce, even if they still live abroad. This is difficult for some people who have moved to the U.S. and their spouse lives in an underdeveloped country.

STEP 2 : Find out what your state’s long-arm statute is. The long-arm statute will let you know if the local court will have personal jurisdiction over a spouse that does not live within the state. If the court cannot obtain personal jurisdiction via the long-arm statute then the state lacks the power to divorce you unless your spouse agrees to the divorce.

STEP 3 : Hire an attorney to draft an Original Petition for Divorce. This is one of the main documents that your spouse will need to be served with. You’ll need to include the date and location of your marriage, your and your spouse’s current address, and you may be required to allege he ground for divorce (i.e. Texas). Be sure to include any proposed property settlement and child custody arrangements if applicable.

STEP 4: Hire an attorney to issue a Summons or Complaint (depending on the state). The summons/complaint must be served with the Original Petition and will notify your spouse of the divorce that you filed and give them information regarding any hearing(s) currently set in the case.

STEP 5 : Provide your attorney with the English translation of your certified marriage certificate if it is printed in any other language other than English. Use a licensed translator to do so; the translator will provide you with an affidavit certifying the translation as accurate.

STEP 6 : If the foreign country that you were married in requires it, prepare a translation of the Original Divorce Petition filed in the U.S. and the summons, etc. into the language of the foreign jurisdiction where the marriage took place. Again, use a licensed translator.

STEP 7 : Once your spouse files an answer, the state court will move forward with the divorce proceedings. If you properly served your foreign spouse and they fail to timely file their answer, you may be eligible to receive a default judgment.

Tips & Warnings

  • Sometimes though you are legally divorced in the U.S., the foreign jurisdiction where you were married will not acknowledge the divorce. If they don’t you may have to initiate divorce proceedings there as well.
  • U.S. courts have no jurisdiction to enforce a divorce decree that makes disposition of property that is located abroad or custody agreements if the child is living abroad. A U.S. court could uphold an agreement to divide overseas property but only by express agreement of the parties.
  • If your spouse lives in a country that is not a member of the Hague Service Convention, it may be more difficult to serve them. If the Hague Service Convention does not apply, you should refer to the local law to determine how the divorce papers have to be served.

What should you take from this article?

1. Record proof of your foreign marriage

2. Try to get an American premarital agreement if you anticipate moving to the U.S. and

3. Hire an experienced attorney to help you file for divorce.

Topics: Divorce Law