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THE LEGAL EAGLE

OVERSEAS DIVORCE ISSUES - EUROPE

INTRODUCTION: As a service to our family law clients, the Military Committee of the American Bar Association's Family Law Section has prepared this handout with frequently asked questions on issues involving overseas divorce in Europe . It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these questions and answers carefully in connection with your visit to our office so that you may have the fullest information available to help you with your family law problem. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.

1. Q. CAN I GET A DIVORCE THROUGH THE LEGAL ASSISTANCE OFFICE?

A. No. You have to go to court to get a divorce, and you will probably need a private attorney to do that. Although you are not legally required to have an attorney, it is sometimes difficult to get a divorce without one. Even though a legal assistance attorney (LAA) can't go to court for you, a LAA can still help you by advising you about the issues and procedures involved in your case and by preparing a separation agreement for you and your spouse to sign, if appropriate.

2. Q. WHERE CAN I GET DIVORCED?

A. You can't just file for divorce anywhere. A valid and legal divorce can only be granted in the “home state” or domicile of either the husband or the wife. This means the true legal home of one of the marriage partners. It is the place where a partner can vote, pays income taxes and qualifies for in-state college tuition. It does not necessarily mean the same thing as a military "home of record." You will usually have to hire a lawyer in that place (state or country) to start the divorce proceedings. We don't recommend that our clients try to get a “quickie divorce” in places such as the Dominican Republic, Mexico or Nevada because they're usually not legal residents of any of these places, and all they get is an expensive piece of paper that's worthless!

3. Q. WHAT HAPPENS IN A DIVORCE?

A. Several things can or will happen:

· First of all, you become single again -- you are no longer married. You can date, get remarried or stay single. You can file your taxes as “Single” (or, if you have dependents living with you, as “Head of Household”) rather than as “Married.” Usually the ex-wife can also resume the use of her maiden name – and often this may be requested in the divorce papers that are filed by her.

· A divorce, however, doesn't necessarily mean that child support, alimony, property division and custody are all resolved. This depends on the law of the particular place (state or country) where you file for divorce or dissolution of marriage.

In some places, that's what must happen before the divorce is granted; all issues in dispute between the parties must be resolved by trial (and all not in dispute must be settled by written agreement) before the court will give you a divorce.

In others, however, the divorce is entirely separate from these other issues and may be granted independently of a resolution of these issues; you can go ahead and litigate (fight in court) any contested issues at any time before or after the divorce, which is granted independent of the claims for property division, custody, child support and alimony.

4. Q. HOW LONG DOES A DIVORCE TAKE? WHAT ARE THE GROUNDS? CAN MY HUSBAND CONTEST THE DIVORCE?

A. WHOA! Not so fast -- the answers to these questions depend entirely on the law... the law of the place where you get divorced. And that means about 50 different answers are possible for just the United Stated alone. In fact, in some states the answers vary from county to county or even from city to city in the same county. You'll have to ask your legal assistance attorney or your divorce lawyer these questions in order to get the right answers.

First of all, let's try some answers according to “state law,” that is, what might happen if you got your divorce from one of the 50 states. Then we'll look at divorce law in some countries overseas.

DIVORCE IN THE STATES

5. Q. I HEARD YOU HAVE TO HAVE A SEPARATION AGREEMENT TO GET A DIVORCE. IS THAT TRUE?

A. No. As a general rule, you do not need a separation agreement in order to obtain a divorce. While a separation agreement will usually make the divorce simpler, cheaper and sometimes faster to get, it is not a requirement for a divorce. You should consider a separation agreement if you think you and your spouse can agree on its terms, since this means a full resolution of all your differences and it leaves less to fight over with lawyers in court. Please pick up a copy of our LEGAL EAGLE handout, “Separation Agreement Survival Guide for Soldiers and Spouses” if you want to learn more about separation agreements.

6. Q. WE DON'T HAVE ANYTHING TO FIGHT OVER -- NO KIDS, NO PROPERTY. CAN'T WE FILE FOR DIVORCE WITHOUT A LAWYER AND SAVE SOME MONEY?

A. In some states there's a simplified procedure for “ pro se divorce” (which basically means “do-it-yourself”). In such cases, there are standard forms in which in which you can fill in the blanks, or sometimes there are examples you can use (but which you'll have to re-type) in order to start your divorce case. Then you would need to serve these papers on the other side, usually by certified mail, by sheriff or by a “process-server” (that is, a person who delivers court papers). If the other side doesn't respond within a certain period of time, the court will either grant your divorce then and there, or else may allow a hearing to be held which should result in an uncontested divorce. Having said all of this, it still should be noted that there's no way of telling which states allow this simplified procedure, which ones make it easier or more difficult for you to get your own divorce without a lawyer. Once again, you should ask for the help of a legal assistance attorney to check on this for you.

7. Q. WHAT ABOUT ATTORNEY'S FEES? I SURE DON'T WANT TO PAY A LOT OF MONEY FOR MY SEPARATION AND DIVORCE. LET MY WIFE PAY ALL MY ATTORNEY'S FEES! WHY DO I HAVE TO PAY?

A. Get a copy of our LEGAL EAGLE handouts, “You and Your Lawyer” and “Selecting a Divorce Attorney.” They contain everything you need to know about attorneys and legal fees.

8. Q. WHAT SHOULD I WATCH OUT FOR?

A. Lots of things, but three in particular are very important:

· Support for your family can be resolved by a judge or by agreement. Don't stop paying family support unless the court tells you that you can -- or specifies a different amount than Army regulations. This is a matter to discuss with your legal assistance attorney or your civilian lawyer.

· Property division (sometimes called equitable distribution) should also be done at or before the time of the divorce. The division of marital (or community) property is alive and well in all 50 states, and you should be sure to request this in your "pleadings" (the complaint or petition for divorce) so as to preserve this for the court to decide if you and your spouse cannot "work things out" by agreement (or, in the case of dividing military pension rights, a consent order). An agreement, of course, would probably be the cheapest way to resolve this issue, but that's not always possible if the two of you don't see eye-to-eye. Talk to your lawyer about this also. Make a list for him or her of all the property either of you has acquired during the marriage (real estate, motor vehicles, bank accounts, household furnishings, stocks and investments, retirement assets) to make easier the job of deciding on whether an agreement can be reached. And don't forget the debts that either or both of you accumulated for marital purposes during the marriage.

· Recognition of your divorce “back home” (in the U.S. ) may be a problem if you get your divorce overseas. American courts are required by the U.S. Constitution to recognize and honor the orders and decree of their sister states (so Kentucky , for example, would have to honor and enforce a divorce decree from Arizona ). But U.S. courts do not have to recognize court decrees from other countries. A divorce decree and child support order from Belgium , for example, may not be honored in Florida . If you get a decree of divorce and custody in Korea , it need not be recognized and enforced in California . And the courts of foreign countries cannot divide military pension benefits -- this can only be done by an American court and should be requested in court papers before the divorce is granted . Be sure you know these rules before you choose to go to court overseas.

9. Q. WHAT IF MY SPOUSE WON'T GIVE ME A DIVORCE?

A. The judge is the person who grants a divorce, not your spouse. If your spouse won't cooperate with you, it will take longer and probably cost more to get your divorce, but you can still get one.

10. Q. HOW DOES THE COURT PROCEDURE ACTUALLY WORK?

A. In all states, you may file for divorce only if you have been a resident for at least some period of time, often six months prior to the date of filing. You may also file for divorce in the state where your spouse is a legal resident. The term “legal resident” means your home state or your “domicile” (see above section, WHERE CAN I GET DIVORCED?). In addition, a court order for child custody usually requires that you file in the state where the child has been living for the six months immediately preceding the filing of the lawsuit.

After filing your divorce paperwork at the courthouse, your lawyer will serve a copy of the summons and complaint on your spouse. If your spouse consents or does not file an answer within the time allowed, usually a few weeks after being served, the judge may then grant your divorce, or it may be held up till all of your issues are resolved.

If your spouse files an answer contesting the divorce, then a trial date will be set. At the trial, both of you will be allowed to testify, and then the judge will decide whether to grant the divorce. In some states the judge will also decide how to split up your property and debts, and all the other issues involved in your case. It would be very unusual for the judge not to grant a divorce, but the property and custody arrangements may not be what you asked for.

11. Q. THAT SEEMS PRETTY LONG. IS THERE A QUICKER WAY?

A. Not really. If you believe everything you see , you may remember seeing ads for quickie foreign divorces, but don't be fooled. The U.S. does not recognize those divorces, unless you have your spouse's consent. And if you have your spouse's consent, it's usually cheaper to file in the U.S.

12. Q. IS MY DIVORCE FINAL WHEN THE JUDGE SIGNS THE DECREE?

A. Not always. In some states there is a waiting period after entry of judgment before the divorce becomes final. In other states, it's final when signed by the judge. When in doubt, ask your divorce attorney or check the divorce judgment itself -- the decree may state its effective date.

13. Q. CAN MY SPOUSE AND I SEE THE SAME LAWYER?

A. Yes, sometimes. You can use the same lawyer in the following situations:

> Lawyer as Document Drafter. If you've already reached agreement on all the issues and you want the lawyer simply to write down your agreements in a format that can be signed by both of you for your separation agreement; or

> Lawyer as Mediator. If you are likely to reach agreement on all of the important issues involved in your divorce or separation, and the lawyer is not acting as an advocate for either party, but rather as an impartial mediator who provides information to both parties and discusses possible solutions to the issues involved in the divorce or separation. Spouses who are able to cooperate with each other to resolve these issues fairly and amicably can often get a separation agreement faster and easier through mediation than through traditional negotiations or trial.

Outside of these two cases, you may not use the same lawyer if the two of you are in dispute over substantial or important issues, because it would be a “conflict of interest” for the lawyer to try to represent both of you in the separation and divorce. This means that he or she could not be loyal to one of you without doing a disservice to the other. A lawyer cannot have two clients in a divorce case, since whatever he or she gains from one will usually be at the expense of the other. For example, if the lawyer works toward getting lots of alimony for Mrs. Smith, then SGT Smith will suffer; if, on the other hand, he or she tries to get no alimony for SGT Smith to pay, and then this hurts Mrs. Smith! It's really a NO-WIN situation for the lawyer and, quite often, for the clients as well.

14. Q. IS THERE ANYTHING ELSE I SHOULD DO BEFORE THE DIVORCE?

A. Yes. Among other things:

>Both spouses should consider canceling joint financial obligations, accounts and other arrangements, such as credit cards, bank accounts and phone calling cards. The military spouse should file a disclaimer with AAFES and other check-cashing facilities to avoid being held liable for the non-military spouse's bad checks, and he or she should put a block on DPP or similar plans at AAFES for the same reason. AAFES disclaimers must be renewed every year until the divorce becomes final.

>Both spouses should consider canceling powers of attorney, making new wills, and changing the beneficiaries of IRA's and life insurance policies, including SGLI.

>If you and your spouse get back together and live with each other after the separation agreement is signed, the validity and legal effectiveness of the agreement may be damaged or destroyed.

>If you both agree not to follow one or more of the provisions of the separation agreement (for example, if you decide that one of the children should live with someone other than the custodial parent named in the agreement), then you should sign a new agreement or an amendment to the separation agreement. To change court-ordered child support, you must go back to court and ask the judge to make the change.

>The military spouse must notify the housing office after the separation agreement is signed or you stop living together, whichever occurs first. You will be asked to move out of the government quarters, usually within 30 to 60 days.

>You should also notify your commander to update the military spouse's personnel records and the non-military spouse's ID card, passport stamps, no-fee passport, ration cards, driver's license, POV registration, and residence permit.

DIVORCE IN OTHER COUNTRIES

Now let's see what the answers might be if you got divorced in a foreign country.

15. Q. WHAT'S SEPARATION AND DIVORCE LIKE IN GERMANY ?

A. Divorce Overview: To file for divorce in Germany (assuming one of you is a legal resident of the country), you must have lived apart for at least one full year to get an uncontested divorce, and at least three full years to get a contested divorce. The only ground for a divorce is an irretrievable breakdown of the marriage. The German system uses a so-called “package divorce”. This means that, by law, the judge not only has to address the issue of the dissolution of the marriage but also of custody, child support, spousal support and retirement benefits, both military and civilian. All the other issues will only be addressed on a petition to the court. Retirement benefits and marital property (money, bank accounts, real property, debts) are two completely different issues in Germany and they are always treated separately. Also household goods are subject to specific legal provisions. Other specific points are:

>A German court cannot divide American retirement benefits, and the spouse (usually the wife) of a soldier with valuable pension rights may find herself “out in the cold” if she tries to get help in a German court for the division of her husband's military retirement. Even if the judge states (and this often occurs) that he or she will not decide the issue of retirement benefits but will leave it open to the parties to reach an agreement about solving the problem, this probably won't solve anything. Here's why:

>What if the parties cannot come to an agreement? Only a handful of lawyers in Germany really know how to do it and their experience only covers a possible agreement between two Germans. It will be almost impossible to solve this problem through the German system because it is not designed for a German/American contract solution. And even if such a contract were signed, it does not provide the same protection as a court order for custody, child support or spousal support, and a contract on military pension division simply won't be recognized in the United States when the nonmilitary spouse applies for a division of her husband's pension payments.

>What if the American courts, which generally can divide military pension rights before divorce are not asked to act until after the parties have divorced? In this case, because the nonmilitary spouse (ordinarily the wife) waited too long , she may be unable to receive any portion of her husband's retirement.

Divorce Procedure: If both spouses agree, the marriage will be dissolved after this one year. If one of them contests it, the judge will look for evidence of the breakdown and, if he finds it (living separate will very often be sufficient anyway) he will issue the divorce after all. The breakdown of the marriage is presumed by law if the spouses have lived separate for three years. The judge will most likely grant the divorce at the initial hearing if the divorce is not contested, but this doesn't mean that the divorce is final yet or the parties are legally divorced at that time. In Germany it is possible to appeal a divorce decree, just like any other civil judgment from a court. The time for appeal is within one month after the parties have been served with the divorce decree. After that time is up, the decree is final and the parties are legally divorced. It is possible to finalize the divorce right at the hearing if both parties waive the right to appeal. But in order to do this, both parties must be represented by attorneys to make and accept this petition to the judge. If one party does not want to be divorced quickly, the other will have to wait at least a month for the divorce decree to become final.

Use of Separation Agreements: Separation agreements are not that common in Germany . Under normal circumstances, an ordinary couple with a normal income would not sign one because it has to be drafted by and signed before a German Notary Public who will charge a considerable fee for these services. In the divorce procedure both parties might still need a lawyer. So why spend money twice? It is more common to sign a marital agreement right after the marriage, especially if there is a lot of money or some real property involved. (NOTE: If two nationalities are involved, a separation agreement will be even more complicated because it will be difficult to find a German Notary who speaks English well enough to explain the legal questions involved. By the way, a German Notary is legally liable for the contents of the document that he or she drafts, as well as for the correctness of its form!)

Attorney's Fees: Attorney fees in Germany are usually much higher than in the United States , particularly for an uncontested divorce. German attorneys do not charge their client on an hourly rate. Their fee is based on the so-called “value of a case”. The latter is determined by the amount of money in dispute or it is assessed by the judge himself, who attributes a certain value to a certain legal question. A strictly binding ordinance will inform the client how much “one share of the total fee” is. Depending on the work that is done, the attorney can get one, two or three shares (for counseling and paperwork, for filing the petition and for court representation). This system permits a fairly exact estimate on the future costs right from the first consultation. It also means that attorney's fees are going to be the same no matter which attorney you hire. It is the attorney's ethical obligation to counsel his or her client on the total costs of the legal dispute. Of course, any attorney will request a retainer if the client wants to fight the case . The attorney must make a deposit for court fees when the case is filed in the first place. In small towns (and also depending on the competition between attorneys in the specific locality) it is not uncommon, however, for the first divorce counseling session to be given at no charge to the client.

16. Q. I'M STATIONED IN ITALY . WHAT'S DIVORCE LIKE THERE?

A. Separation. There are two types of legal separation in Italy . The first is consensual separation, which stems from a mutual agreement between husband and wife, and which is then approved by the court. The second is judicial separation, in which hearings and discussions are normally involved before an agreement is reached and the judge determines which spouse is responsible for the failure of the marriage.

Divorce Overview. Divorce in Italy may be obtained on one of the following grounds: After the court has approved consensual separation; after judicial separation; when one spouse has been sentenced for certain criminal offenses; when one spouse is a foreign citizen and has obtained a divorce or has married again abroad; or when the marriage has not been consummated. If the divorce is based on separation, it may only be obtained after three years of continuous separation beginning on the date the spouses appeared before the court in the proceedings for legal separation.

Other Issues. The judge will determine which spouse will have custody of the children, if any, and establish the type and amount of support the other spouse will provide. At any time after the separation, the spouses may request a review of the conditions on which the separation was granted, especially in regard to the exercise of parental authority, amount and type of child support. Spousal support may also be sought if the spouse seeking support was not at fault for the separation and has no means or insufficient means for his or her support. The same comments as above apply to division of American retirement benefits, especially military pensions; this can only be done by U.S. courts.

Divorce Procedure. A petition to obtain the dissolution of the marriage must be filed with the court within the territorial jurisdiction of which the petitioner resides, or before any court of the Republic of Italy if both spouses reside abroad. Following the divorce, the woman normally loses the last name of the former husband. The procedure is as follows:

> First, the parties have to obtain a separation decree. This is mandatory. Separation can be consensual or judicially imposed. In general, consensual-separation divorce proceeds fairly quickly; judicial procedures, on the other hand, are more time-consuming and depend upon the individual circumstances.

> After at least a three-year separation, one of the parties may file for divorce. They do not have to file for this, but obviously it's the only way they can get remarried. There is no time limit on getting a divorce.

> A joint divorce, where both parties agree, follows a quick hearing. The judge makes a decision, which is finalized approximately one month after the decision, but this time period varies. There are no guarantees on the length of time necessary for any of these processes. An estimate of cost, including attorneys, would be between 2 and 3 million lire .

> The judicial divorce takes longer, depending upon the how many and what kind of questions need to be resolved by the court. No cost estimate is available for this, since it depends on the questions and issues involved.

> An attorney is probably necessary for both types of divorce. The parties should obtain an attorney in the same manner as they would back in the U.S. -- referral from another attorney, telephone directory, advertising, or references from friends or relatives.

17. Q. IF I HAVE OTHER QUESTIONS, WHAT SHOULD I DO?

A. See a legal assistance attorney or private attorney as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives. Our office stands ready, willing and able to help you in these matters. Be sure to bring along with you to the interview a copy of any documents or court papers that might be helpful to your attorney. You might also want to pick up a copy of our LEGAL EAGLE entitled “You and Your Lawyer” for specific information about hiring an attorney to help you. There are also specific LEGAL EAGLE's on custody, setting child support, child support enforcement, dividing military retirement benefits, parental kidnapping and several other topics related to separation and divorce.

[rev. 1/24/08]

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THE LEGAL EAGLE SERIES OF CLIENT HANDOUTS IS PREPARED BY MARK E. SULLIVAN, CHAIR OF THE MILITARY COMMITTEE, ABA FAMILY LAW SECTION AND AUTHOR OF THE MILITARY DIVORCE HANDBOOK (AM. BAR ASSN. 2006). COMMENTS AND SUGGESTIONS SHOULD BE SENT TO HIM AT: 2626 GLENWOOD AVENUE , STE. 195, RALEIGH , N.C. 27608 [919-832-8507]; E-MAIL— MARK.SULLIVAN@NCFAMILYLAW.COM

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