Military divorces are complex as is, but when one spouse is overseas and children are involved, the process can be even more complicated. Where should you file for divorce? Which courts will determine child custody issues? Military couples often ask these questions when filing for divorce, and the answers aren’t always clear-cut.
Where Should You File for Divorce?
If you and your spouse are both living overseas, you have a few options. The non-military spouse can return back to the U.S., and the couple can wait until the military spouse returns home to file. This is often the best course of action as the military spouse will then be able to attend hearings. You may also file for divorce overseas, but the laws of that country will apply and there is a chance that your divorce will not be recognized in the U.S.
If your military spouse is overseas and you’re living in the U.S., you can file for divorce in the state where you’re currently residing or the state your spouse last lived in for at least six months. Keep in mind that because your spouse is stationed overseas, hearings may be delayed until he or she is able to attend them in person.
How are Child Custody Issues and Visitation Handled?
If your military spouse is overseas, settling child custody issues and visitation can be a challenge. How the matter is settled will likely depend on where the child is living.
- If the child is living overseas and a habitual resident of that country, the courts in said country can determine child custody issues.
- If the child is living in the United States or is not a habitual resident of the country, the issue will be determined by a court in the U.S.
If the child is living in the U.S., then the suit should be filed in the county where the child lives.
Can You File for Custody in a Foreign Court?
Yes – provided that child is living in the country. If you, your spouse and child are living in the country, you can ask the court to grant custody of your child. The physical presence and habitual residence of the child will be the most important factors in this case.
If you choose to go this route, the courts in that country will decide on child custody issues as well as visitation. It’s important to note, however, that some countries will not decide on child custody matters unless at least one of the parents is a citizen of the country. In most cases, the child must also be a habitual resident of the country to file overseas.
Most states in the U.S. have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. Under this act, courts will recognize a child custody order from a foreign court and treat such orders as if it were an order of that state or a sister state. However, the foreign court must have had proper jurisdiction over the child when the order was entered, and there are certain other requirements that must be met.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law and estates. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. Brad has significant experience working with military families. To set up a consultation, call 973-562-0100.