Just because you and your spouse reside in Texas does not mean that it is only the Lone Star State whose laws could conceivably apply to your divorce. Rather, if you and your spouse have resided together in another state or country, or one of you have done so individually, it could be that the foreign country or state has jurisdiction over your case. As we saw in yesterday’s blog post, this could have a profound impact on the outcome of your divorce.
Family laws can vary a great deal across the United States, and certainly can vary a great deal across the world. In addition to determining what court is in the best position to hear your case from a jurisdictional perspective, you also need to consider the laws of the country or state that is likely to hear your case. Depending on the positions you will be advocating for within your divorce, the laws of your jurisdiction could be extremely impactful.
For instance, if you and your spouse own a great deal of property- real estate, investments, cash, and personal property- you will have to face up to any concerns you may have regarding the division of that property within the framework of that divorce.
Questions to ask yourself (and your attorney) about the division of property in a divorce
For starters, you need to know whether or not your property will be divided equally between you and your spouse or by a straight, 50/50 split? Texas is a community property state which means that property is generally split near to 50/50 all other things being equal. Any property that has been acquired or income that is earned will be counted as community property for the purposes of the divorce. This property is subject to a just and right division by a judge. This means that usually it will be split down the middle if the question needs to be answered by a judge.
If the property will not automatically be split 50/50 by a judge then you need to be aware of what factors a judge will use when deciding how the property will be split. For instance, does adultery, financial misdealings like fraud, or wasting of community assets have an impact on how the judge divides property?
Another important consideration needs to be given to how property is valued in a divorce. There are various methods that could be implemented to value a home, for instance, if that home is to be sold during a divorce. Even if the house is not going to be sold, it is likely that you or your spouse will need to have your equity position bought out, so a valuation is still necessary.
The concealment of foreign assets
Your ability to identify and preserve as much of your assets early on in the divorce is very important from a property rights perspective. If you can prove the existence of a particular piece of property, document its existence and then produce strong arguments as to why it should be awarded to you then you are ahead of the game. You may even be able to see temporary orders from a court that can protect the property against its sale without your permission during the divorce.
What courts will recognize the authority of other courts when it comes to enforcement cases?
If Texas has the authority to hear your divorce case, then we would say that Texas has jurisdiction over your case. The laws of Texas, therefore, would apply to your case and not those of any other state or country. However, just because a court has vested authority in itself to make decisions about your case, that does not mean that any other court will honor those decisions, especially if the other court is a foreign court.
The fact is that some foreign courts will refuse to enforce foreign orders that conflict with the laws of their country. If you have a court order that is subsequently unenforceable, you have a court order that is not worth the paper that it is printed on. With that said, there is an even greater impetus to decide on what court should hear your divorce case.
The most important elements to international child custody cases
Many families no longer spend their entire lives living in one city, not to mention one state or one country. With that said, relocation happens all the time- more so for Texas families than for most families across the United States. Whether you have moved to be closer to family, to avoid violence or poverty in your home nation or because you are a member of the United States military, movement of families is a reality in 2019.
Child custody cases are extremely complex- especially when it comes to international child custody cases. There are a lot of moving pieces that you need to be able to focus on in order to succeed. Doing so without the assistance of an attorney can be downright impossible. Make sure that you have an attorney in your corner who has experience handling these types of complex cases. The attorneys with the Law Office of Bryan Fagan fit the bill of that description, if I may say so myself.
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) requires that all states in the United States apply for foreign custody orders from another nation when determining your case in the United States. Since the UCCJEA plays a huge part in determining the outcome of cases like this you need to do your homework and select an attorney who is fluent in this law and those of the nation or state whose laws will be applied to your case.
Being choosy with selecting where your case is going to be heard
With increasing mobility comes the increased chance that families are going to attempt to get around less attractive custody laws in one jurisdiction by removing your children from that country/state and placing them into the jurisdiction with more favorable laws from their position.
The difficulties associated with the return of abducted children is a problem that is, unfortunately, a reality that many families face in our area. In many instances, you have parents who believe that they should be able to take their child wherever he or she pleases, court order or no court order.
If you believe that your spouse or partner is willing to remove your children from Texas in order to file a child custody lawsuit in another country or state whose laws are more favorable to him or her, you need to pay close attention the information that we are about to provide you with.
In order for you to be able to present a case to a judge that your child was wrongfully abducted from your home state, you need to be able to prove a number of things to a judge. First of all, your child must have actually been a resident of Texas and the United States. It is insufficient for your child to have been a temporary resident or an occasional resident of the country. Many families have children go to school in Texas and reside the remaining months of the year abroad. Your child must be a full-time resident of Texas.
Next, you must have custody of your child or have been awarded parental rights by a court. That custody and those rights must be based on the laws of the United States/Texas and not on your position that you have custody of your child based on the laws of another nation. Residency in Texas would grant you rights and duties to your child even if you have never been to court before. Or, if you have been to court for a previous divorce or child custody case, the final orders for those cases would suffice for our purposes.
Finally, you must have been an active and involved parent in the life of your children in order to have a valid case for the return of your child. An absentee parent who, nonetheless, has parental rights to a child is not going to work. You need to have actually been an active participant in the life of your child.
What can an abducting parent offer as a defense in a family court?
If the shoe is on the other foot and you are a parent who took your child from Texas to another country, then you will need to be able to present a defense to doing so. For instance, you could offer a piece of court evidence that the parent who was left behind in Texas was not actually taking advantage of any time with your child. He or she may have been an absentee parent who is now only showing an interest in the child because you removed him from the country.
You may have had a conversation with the parent who was left behind, and that parent may have given you permission to go ahead and take the child with you. It would have been for the best for you to get this permission in writing. If you did not, you can still offer conversations with your child’s other parent as evidence that consent was given. In the alternative, you can present evidence that even if the parent did not give permission initially, subsequent to the removal the parent did give their ok for you to take the child abroad.
Lastly, you are able to show a judge any evidence that your child was facing some sort of grave risk of harm by staying in the United States. Child abuse, domestic violence or any other factor that places the safety of your child at risk are legitimate reasons to remove a child and prevent their return to a country.
If your child is old enough, their wishes can trump the failure of the taking parent to present a viable defense for the abduction of a child. In the event that your teenage child does not want to be returned to the United States that could impact the judge’s decision as well.
Keep in mind that to bring a lawsuit in Texas for the return of an abducted child, you must do so within a year of the removal. If you wait to bring the lawsuit until after one year, the taking parent can present an argument that your child has now grown acclimated to the new country. This means that you need to figure out a plan of attack, quickly, and set that plan into motion. Do not allow your child’s other parent to dictate to you how your life is going to be led.
As you can plainly see, you have a choice in all of this. You can control how quickly you act in the face of your child having been removed from their home and from the United States. There are resources available to be able to help you with holding the taking parent accountable for their actions. The first step in that process, in my opinion, should be to contact an experienced attorney.
Questions about international child custody and divorce cases? Contact the Law Office of Bryan Fagan
If you have any questions or seek clarification about the material that we have covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity to ask questions and receive feedback about your case and your circumstances.
A family law case is not something that you want to let sit for an extended period of time. If you have been served with divorce papers or have seen a problem develop between your ex-spouse and yourself regarding a child custody issue it is in your best interests to act now to protect yourself and your family. A phone call to our office can take away a great deal of anxiety and set you up to be able to solve whatever problems you are currently facing.
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Other Articles you may be interested in:
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
- High Net Worth Divorce / High Asset Divorce
Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.