Sunday, December 9, 2012

International divorces: issues of jurisdiction and service of process

One of the most frequently asked questions in international divorces is “can I get divorced in USA when my spouse is in another country?” In my practice, I had several cases where I had to deal with this concern. Every time when I get a case like this I check first if Washington State has a jurisdiction over the parties.

The best case scenario is when you and your spouses resided in Washington State for several years, you started the divorce procedure right after your spouse moved out of state, your children continue to live with you in WS, and you and your spouse acquired property here. Unfortunately, not all cases present best case scenarios. What to do if your spouse never lived in Washington and you have been here for quite a while?

In In re the Marriage of Tsarbopoulos, 125 Wn. App. 273, 285, 104 P.3d 692 (2004), parties got married in Ohio in 1986. During the 13 years of being together they had 3 children. In 1997, the family moved to Greece where Mr. Tsarbopoulos grew up. In 1999, the mother moved with the children to Washington State to live with Ms. Tsarbopoulos’ parents. In 2000, the mother initiated dissolution of marriage procedure in Washington State.  After several rounds of court actions, the final decree of dissolution was entered and then vacated. The court of appeals was asked to determine validity of the divorce.

Normally, when someone is divorced, the court has decides following issues:

1.       Whether to divorce the parties;

2.       Who receives child custody and how parenting plan should look like;

3.       What child support is owed and to whom;

4.       How parties’ assets and liabilities should be divided.

The appellate court looked at each four issues separately in terms of whether the trial court had jurisdiction to resolve those issues. Here is what the court found in short:

First, the court held that the court has jurisdiction to enter a decree of dissolution if one party is domicile in Washington State and the other party is served by a method authorized by Washington’s court rules and Statutes.

Second, the court found jurisdiction over the child custody on the basis of requirements of chapter 26.27 RCW and UCCJA. The jurisdiction is based on the child’s connection with the state and personal jurisdiction over an affected parent is not a requirement. Due process, however, requires that the affected parent be given notice and the opportunity to be heard.

Third, child support issues and division of assets and liabilities require in personam jurisdiction over the affected person. In personam jurisdiction exists if the affected person has at least minimal contacts with the state of Washington.

In addition RCW4.28.185 states that a person submits to the jurisdiction of a Washington court when living in a marital relationship within the state notwithstanding subsequent departure from the state.

In Tsarbopoulos case the court agreed with trial court’s determination of child custody and finalization of divorce and vacated court order related to child support and division of assets and liabilities.

In conclusion, in cases where one of the spouses resides out of state, it is essential to determine questions of jurisdiction prior to starting the dissolution procedure. It will allow parties to avoid motions on the issue of jurisdiction and to ultimately save money on the legal proceedings.