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43 Fam. Advoc. 22 (2020-2021)
Family Law Disputes between International Couples in U.S. Courts

handle is hein.journals/famadv43 and id is 76 raw text is: Fm Iy Law Disputes Between Internati o118 Couples in U.S. Courts By RHONDA WASSERMAN he structure of the American family has changed dramatically over the last several decades. Many couples are cohabiting before marriage or eschewing marriage altogether so more children are born to unmarried parents. More parents are having children when they are older and better educated. And more same-sex couples are living together and marrying. Add to this mix increasing mobility, migration, and rising numbers of international couples-partners that are citizens of different countries, live outside the country of which they are citizens, or move between countries. And recognize that countries around the world are governed by different legal regimes, such as the common law system, civil codes, religious law, and customary law. Finally, consider that many couples are taking legal matters into their own hands by signing premarital and separation agreements, which may contain choice-of-law clauses. How do American courts handle family law disputes that arise between these interna- tional couples? Choosing a Forum Federal Courts Are Out Since the founding of the nation, federal courts in the United States have been authorized to hear lawsuits between citizens of a U.S. state and citizens or subjects of a foreign nation. This type of jurisdiction, called alienage jurisdiction, is designed to protect the non-U.S. party from bias and to preserve harmony between the United States and foreign nations. While these goals might well be served by affording international couples a federal forum in which to litigate family law disputes, the Supreme Court has concluded that a domestic relations exception divests the federal courts of power to issue divorce, alimony, and child custody decrees. Thus, federal courts are not an option for international couples seeking to resolve their family law disputes in an American court. Restrictions on State Court Jurisdiction State courts in the United States may divorce couples that were married abroad even if the cause for the divorce occurred abroad, but only if one of the spouses is domiciled in (or at least a resident of) the forum state at the time the divorce action is commenced. So international couples in which neither spouse is a U.S. citizen or has a green card (and can readily establish a right to remain in the United States indefinitely) may have a problem demonstrating domicile and invoking state court jurisdiction. Even if one of the spouses is domiciled in the state, the court will proceed only if the petitioning spouse can also satisfy the state's durational residency requirement. These statutory require- ments vary by state, but the most common requirement is six 22 FAMILY ADVOCATE www.shopaba.org Published in Family Advocate, Volume 43, Number 2, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.