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THE LEGAL EAGLE

OVERSEAS DIVORCE ISSUES - FAR EAST

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 the Far East . 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 k now about attorneys and legal fees.

8. Q. WHAT SHOULD I WATCH OUT FOR IN A DIVORCE CASE?

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 or agreement 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 from Japan , 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 divorce 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. You'll need a trial for any contested issues.

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 question, “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 have been 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, 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 DIVORCE AND SEPARATION LIKE IN JAPAN ?

Divorce. A “mutual consent divorce” is available if one party is Japanese. It is the easiest and least expensive type of divorce. It is recommended that both parties be present and they must be in complete agreement on the terms of the divorce. An application for divorce by mutual agreement may be filed at any Japanese city hall. The documents are transmitted to the city hall where the Japanese citizen's family register is maintained. Once properly filed with the family register, the divorce is final. There is no charge for the divorce, but there is a charge of 300-350 yen ($2-3) per copy of the certificate.

Family Court Divorce Procedure. An informal procedure may be used to obtain a divorce if neither party is Japanese. This procedure requires both parties to be in agreement on all terms of the divorce, and both parties to be present. An interpreter, fluent in Japanese and English, must accompany the parties. Only one party needs to sign the petition, but both parties must appear for the hearing. The parties will be notified by the court of the hearing date (usually from two weeks to one month from filing the petition). If there are no unresolved issues at the hearing, the divorce will be granted on the spot. Copies of the decree can be obtained at the same time. The cost is about 2,000 yen ($18) to file the petition. There is a charge of 150-300 yen per copy of divorce decree (150 yen per page). When neither party is Japanese, it is a good idea to get several copies of the divorce document from the city hall or family court. In any Japanese divorce action, the parties should get certified translations from Japanese to English of their divorce document or decree prior to leaving Japan . They should file both the Japanese and English version at the county recorder's office or with the clerk of court in the county of their legal residence.

Contested Divorce. There are other procedures to use if the divorce is contested.

Lawyers. Divorce by mutual consent (or divorce at family court) is usually done “pro se” (without an attorney) in Japan . Japan has very few lawyers by comparison with the US , and most people do not use lawyers unless they are in a contested case.

Support. Unless the parties are in agreement, child support will be set by the court after investigation of the financial circumstances of the husband and wife and consideration of the needs of the minor children. Alimony is not usually awarded in Japan , but a lump sum payment in settlement of marital obligations is common.

Custody and Visitation. Servicemembers must be very careful. Kevin Buckland's article, “Think of the Children” in the January 27, 2006 issue of Metropolis magazine, makes the following points:

•  Japan , unlike Canada and 74 other countries worldwide, is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The convention works to ensure the prompt return of abducted children to their country of habitual residence. It does so by compelling its signatories to respect the custodial rights of the left-behind parent. If Japan were a signatory, the Japanese courts would have to acknowledge the rights of parents who have custody under properly entered custody decrees of other nations and, in the case of a parental kidnapping to Japan , order the return of the children. Instead, as is almost always the case in Japan , the court orders a new hearing so that it could decide custody itself, which is exactly what the Hague Convention seeks to avoid.

•  The US State Department says it is engaged with about 1,100 families seeking the return of children abducted or retained abroad. Japan ranks first among East Asian countries in the number of active abduction cases that it handles.

•  Japan has a reputation as a haven for its nationals who abduct their children. It is one of only a handful of developed countries that has not signed the Hague Convention, which seeks “to protect children internationally from the harmful effects of their wrongful removal or retention.”

•  Hans van Loon, Secretary General of the Hague Convention on Private International Law, says that Japan 's failure to accede “will, inevitably, adversely affect Japanese parents and Japanese children abroad. Absent an effective remedy for children wrongfully removed to Japan , authorities of other countries will be increasingly reluctant to attribute custody or access rights to Japanese citizens in situations presenting a risk of international abduction.” According to van Loon, “Japanese civil law stresses that in cases where custody cannot be reached by agreement between the parents, the Japanese Family Court will resolve the issue based on the best interest of the child. However, compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree.”

•  So even if the courts find that your child should be returned to you, there is essentially nothing they can do to make it happen. The police are reluctant to get involved because it's a private family matter. In fact, according to a press statement released by US Assistant Secretary of Consular Affairs Maura Harty, parental kidnapping isn't even considered a crime in Japan .

•  More difficult will be changing minds. After a divorce in Japan , children are traditionally placed in the care of only one half of the family and cut off from the other half. The rationale is that it protects children by eliminating confusion about who is and who is not family.

•  Japanese family courts have historically favored the mother in custody hearings. But there seems to be another, stronger bias at work in the courts, one without exceptions. According to the Canadian father of two children abducted to Japan , in violation of a Canadian court order, “No foreign parent has ever been able to retrieve children abducted to Japan . Despite talk of conciliatory processes guided by the best interest of the children, the Japanese courts always award custody to the Japanese parent. This is a huge injustice.”

•  High legal costs and low success rates point emphatically to the importance of prevention. The US Department of State recommends parents who feel their children are vulnerable to abduction seek legal advice and be cautious before allowing them to travel abroad with the other parent. For parents who want the best for their children, denying them access to half of their family is a painful decision to have to make because it can inflict harm akin to the crime they seek to avoid.

A great resource for information on custody, visitation and problems with the Japanese legal system is Children's Rights Network of Japan: www.crnjapan.com

Warnings. 1) Don't get a Japanese divorce if you want a share of a military pension. Japanese courts cannot divide US government pensions (their court orders would not be recognized by DFAS, the Defense Finance and Accounting Service). Don't get a Japanese divorce if child custody and child support are involved, the children are US citizens, and you want the US courts to honor or enforce your decree.

2) Do not try to get a divorce if either party is not physically present in Japan , or if there is not complete agreement to all terms of the divorce. American law requires that a divorce be granted in the courts of the legal residence ("domicile") of one of the marriage partners. If the court granting the divorce is not in the domicile of either party you risk having an invalid divorce that will not be recognized by the US courts unless both parties are present and consent to the jurisdiction of the court. That means that you might have to start all over again!

16. 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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HE 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

THE NORTH CAROLINA STATE BAR
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