Family Law Disputes Between International Couples in U.S. Courts

• Author: Rhonda Wasserman
• Pages: 22-25

22 FAMILY ADVOCATE www.shopaba.org

The 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 dierent countries, live outside the country of which they

are citizens, or move between countries. And recognize that

countries around the world are governed by dierent 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. is

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 aording 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.” us, 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 indenitely) 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. ese statutory require-

ments vary by state, but the most common requirement is six

Family Law

Disputes Between

International

Couples in

U.S. Courts

By RHONDA WASSERMAN

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

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