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People spend more time overseas than ever before. They might marry a foreign national in one country, parent children in another, and own a business in a third country. Our world is becoming a smaller place and this will have increasing impact on the analysis a matrimonial lawyer must bring to a new case. He or she will soon learn that the laws and procedures of different countries vary to a remarkable degree. The following outline highlights some of the issues the attorney should be exploring with the client in the initial interview.
The question of JURISDICTION typically requires immediate review. With more than one country involved in a case scenario, the attorney must determine which courts have jurisdiction and what law will the courts apply. Some countries emphasize the parties' residence. Others look to nationality and citizenship.
It is important to keep in mind that the divorce itself is often divisible from the related economic claims of the marriage. One court may be able to grant the divorce, but be powerless to resolve the economic issues.
If you're forum-shopping and find a jurisdiction ostensibly favorable to your client, can you do anything in effect to give that court jurisdiction? Ask your client about factors such as the past location of marital residences, other real property, prior employment, bank accounts, membership in organizations or clubs, previous marital litigation, etc.
The jurisdictional issue is a vital one. For example, countries differ on whether interspousal gifts are marital or separate property, whether professional degrees can be valued, whether indeed enhanced earning capacity is a marital asset. A list of other issues to consider when deliberating about the proper forum is as follows:
GROUNDS for divorce are crucial. Some countries allow "no-fault" divorces; others require proof of fault. What degree of proof is involved? How many court appearances, if any, will the client need to make?
Countries will differ widely on the issue of MAINTENANCE or ALIMONY.
CUSTODY, of course, is a major issue requiring careful attention. Some countries favor fathers; others just as zealously protect the rights of mothers. How important is religion in the eyes of the foreign court? Will it help if your client is more religious than his/her spouse? Again, what kind of proof will be necessary to advance your client's case in custody disputes?
Is child abduction an issue in your case? Do not be overly sanguine that your client has acted honorably in this regard. Another country's courts might disagree. A helpful treatise to consult is The Hague Convention on International Abduction. P.R. Beaumont, Oxford University Press, 1999.
Some countries, such as Japan, follow the lead of American courts in enacting CHILD SUPPORT guidelines. Do the guidelines of a particular country favor your client's position or treat the client unfairly? If a country does not have guidelines, then how is child support determined?
Some clients will be successful persons with business enterprises in more than one country. The competent American matrimonial attorney understands the factors his state court will employ in determining the VALUE OF A BUSINESS. However, it is very unlikely that he or she will know how foreign businesses are evaluated.
Business evaluators rely on discount rates in reaching valuations. Unfortunately, discount rates vary greatly between countries, particularly underdeveloped ones. In Europe, for example, companies often have subsidiaries that cross national boundaries in much the same way we have interstate companies. If there is a synergy between the subsidiaries, the overall value of the client's business may be enhanced. If there is no synergy or they are incompatible, the valuator may reduce the value of your client's business. In other words, multinational companies operate by very different accounting rules.
Overseas businesses have other distinct problems from a valuation viewpoint, e.g., currency instabilities, union agreements, lack of legal protection for investors, political instability, varying standards of accounting practices.
As is readily apparent, if your client has an overseas business and he or she is confronted with divorce and property distribution issues, what forum you choose on the client's behalf can have tremendous financial impact.
Marital property is all property earned or acquired during the marriage. Separate property is that owned by one party before the marriage. In New York, separate property is awarded to that individual. However, the increase in value of separate property that occurs during the marital period may be divided under the equitable distribution system. Separate property also includes gifts or inheritances received during the marriage.
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