Divorcing a Spouse in a Foreign Country

Divorcing a spouse who is living in a foreign country is a little more difficult, but not impossible by any means.

Q: Can I obtain a divorce in New York even though my spouse lives in a foreign country?

Yes, as long as you have lived here in NY for at least two years.

Q: What do I need to do?

It depends on whether your spouse agrees to sign the papers, or not.

If your spouse is willing to go along with the divorce, then he/she will need to sign the papers at the nearest U.S. Embassy or Consulate. We have coordinated this on many occasions.

What often works is that we will email a copy of the Summons with Notice and a copy of the Affidavit that your spouse needs to sign (and the property or custody agreement, if there is one) to your spouse.

We'll give your spouse precise instructions on what he/she needs to do, including the location of the nearest embassy or consulate, the hours that the embassy is available for notarial services (some consulates only provide notary services on certain days of the week), together with any other details your spouse needs to know (some consulates require that you make an advance appointment, some charge a fee and some do not, etc.)

We have generally had good results with this approach. Of course, that is not a guarantee.

Q: What if my spouse won't cooperate?

Then you'll either have to (a) serve him with the papers, or (b) obtain an order permitting you to do service in a different way.

Serving the papers in a foreign country requires a familiarity with the Hague Convention on the service of legal documents, a treaty entered into by the United States and about 60 foreign countries. In most cases (though not all), if your spouse's country is on the list of countries who have signed the treaty, then you'll need to follow the Convention. This is best handled by a process server with expertise in the Hague Convention. We use a process server who has been doing this for many years. Expect a cost by the process server of $500-$900, plus our fee for coordinating same.

Q: How long does it take to serve the papers through the Convention?

Anywhere from 2 to 6 months, mostly depending on the agency located in the foreign country.

Q: Will the New York court recognize the foreign country service of documents?

Yes, because the service is made pursuant to treaty, which is federal law, and federal law trumps state law.

Q: That sounds complicated. What is this about "a different way?"

In some circumstances, you can obtain an order from the NY court dispensing with formal service upon your spouse and allowing you to give legal notice in a different way - even though you know where he/she lives. This is achievable where formal service is "impracticable" - perhaps due to cost, the time delay, or the foreign country's unreliability in carrying out service.

The "different way" would typically be by making FedEx or personal service on a close relative of your spouse, together with service by e-mail or even Facebook.

This procedure requires that we make a motion to the Court requesting the alternate arrangements.

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