By Geoff Williams
Oct 24 (Reuters) - Think divorce in the United States is hard? Try ending your marriage in two countries at once.
Red tape, financial obstructions and cultural differences are just a few of the added problems faced by a divorcing American who is a dual citizen, living abroad or married to a citizen of another country.
There are no statistics on how many Americans deal with divorce and dual citizenship, but it is a growing trend due to custody issues, says Ken Altshuler, president of the American Academy of Matrimonial Lawyers.
“We’re seeing more parental kidnappings, more conflict, more litigation and simply more to fight about,” says Altshuler. “Back in, say, 1975, or even in the 1980s, if a woman wanted to move her kid to Brazil, she would have, and nobody would have challenged that because the man was not going to win.”
Robert Makielski of Culpeper, Virginia, hopes that is no longer the case as he fights for custody of his two children. Gabriel, 5, and Isabel, 10, are living in the Dominican Republic with his ex-wife, a citizen of that country.
“I‘m basically dealing with a corrupt system in a foreign court,” says Makielski, 52.
So far, he has spent $50,000 on his travails, and he figures he will spend plenty more. “I expect to probably lose everything,” he says.
Makielski’s case is extreme, of course, but any dual citizen - or anyone married to a dual citizen - in the midst of a divorce is going to find themselves facing a host of problems.
The first question to consider is: Where is it going to be easiest for you to divorce?
Just because you or your spouse is American, do not assume that you can file for a U.S. divorce, especially if you live abroad.
“It doesn’t matter where you were born, it’s where you live that’s going to determine which court has the jurisdiction,” says New York matrimonial lawyer Marilyn Chinitz.
That is not always a bad situation. Emily Edwards, 30, a British and American citizen, married and lived with her husband for two years in London. They then moved to Cambridge, Massachusetts, but soon decided they were not compatible, and they divorced there in 2010.
Because the couple had no children or joint property, “for us, it was easy,” says Edwards, who teaches English as a second language to adults at a private school.
But the laws and outcomes can vary greatly from country to country. As a general rule, divorce and dual citizen issues are easier to manage in the United States and Europe. Laws that greatly favor men’s rights over women’s make navigating a divorce in the Middle East and North Africa especially challenging.
And if you and your spouse disagree about which country is best to divorce in, it becomes a race. Whoever files the fastest determines where the divorce will proceed.
If you have young children, location could be especially important. Think Sally Field in the movie “Not Without My Daughter,” the real-life story of Betty Mahmoody, an American mother who struggled to escape from Iran with her daughter. )
“It can be a very anxiety-ridden situation when you have this type of multiple citizenship and children who are moved from location to location,” says New York matrimonial lawyer Malcolm Taub. “It makes it a much more complicated proceeding even under the best of circumstances.”
The international community has tried to streamline the judicial process when it comes to divorcing across borders, primarily through the Hague Conference on Private International Law, which has about 75 countries as members.
Still, that does not make it any less complicated for some parents, particularly those living outside of their home turf. Chinitz gives the example of an American married to a Swede who decides to move from New York to Stockholm with their 3-year-old. Five years later, the American parent wants to divorce and take the child back home. The other spouse says no way.
“The American parent is going to be in trouble, because she should have consulted international counsel before making the move,” Chinitz says.
But what should you do in a situation where you think your child has been abducted by the other parent? You should ask the state department or your local government representatives to intervene, but you should keep your expectations in check.
“They can get the dialogue going and can put you in touch with key people at the American embassy, but if a country’s going to say our citizen has custody, and take their side, there’s not much they can do,” Altshuler says.
Given his ordeal, Makielski has these words of advice: “Don’t get your kids passports.”
Many divorcing couples who hold dual citizenship find themselves splitting up property around the globe. Similar to how it works with children, the court deciding the case has the power to award property - even property in another country - to one spouse or the other.
If a spouse is overseas with the property and refuses to give it up, you end up having to hope for the best or to show up on the doorstep abroad and try to work it out.
Malcolm Taub has a client whose husband left the country and let his visa expire, which means he cannot return to get the divorce his wife is demanding. If she wants a divorce and child support - and she does - she will have to travel to get it.
“She will have to pursue him in a court in his country of origin,” Taub says. “There are so many twists and turns in these types of situations that it’s impossible to predict how they will play out.”
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