Jeremy D. Morley
People with assets and international
connections who are contemplating a divorce, as well as the spouses of such
people, should first consult us for Strategic International Divorce Planning
advice. Here is what we do for a motivated client (always working with
local counsel as appropriate).
1. Analyze the Family’s Entire Economic
Picture.
This is exactly what any divorce lawyer does in a conventional divorce situation but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.
This is exactly what any divorce lawyer does in a conventional divorce situation but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.
2. Consult with the Client as to His or Her
Goals.
Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client’s real needs and desires. For example, there is no point in advising a client to move his assets into an offshore trust if that will destroy a relationship with his soon-to-be ex or drive an inappropriate wedge between him and other members of his family. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does he believe that his wife will join him there? How about the children?
Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client’s real needs and desires. For example, there is no point in advising a client to move his assets into an offshore trust if that will destroy a relationship with his soon-to-be ex or drive an inappropriate wedge between him and other members of his family. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does he believe that his wife will join him there? How about the children?
3. Provide an Initial Analysis of the Law in
Several Different Possibly Appropriate Jurisdictions.
The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which the client or his spouse have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in his family there, as well.
The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which the client or his spouse have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in his family there, as well.
4. Focus on a few jurisdictions.
We will then usually consult with counsel in those jurisdictions that seem to hold the most promise.
We must analyze, separately for each “target jurisdiction”:
We will then usually consult with counsel in those jurisdictions that seem to hold the most promise.
We must analyze, separately for each “target jurisdiction”:
a) The jurisdictional rules. Will the courts in the target
jurisdiction accept the anticipated divorce case, including all financial and child custody issues?
What “facts on the ground” will need to be accomplished in order to satisfy the
conditions.
b) The grounds for a divorce. What will the client need to prove in
the target jurisdiction in order to be entitled to a divorce? What evidence
must the client secure in order to do so?
c) The nature of the assets that are included in the target
jurisdiction as property that is subject to being apportioned between the
parties upon a divorce or that can be considered in making an economic
apportionment between the spouses.
d) The method of asset division that is used by courts in the target
jurisdiction.
e) The relevance of the conduct of the parties to the division of assets in the target
jurisdiction.
f) The philosophy of the courts in the target jurisdiction.
g) Spousal maintenance. What are the rules concerning spousal
maintenance (alimony). For what period of time might such payments be required?
What is the likely amount of the award? Does the jurisdiction require a “clean
break” whereby the spouse must receive a large lump-sum sufficient to generate
the income needed to meet lifetime maintenance requirements?
h) Enforceability issues. Whether there are any specific factors
which make it particularly easy or difficult to enforce an award in the target
jurisdiction.
i) Particular issues. Each case raises specific matters that
must be analyzed, depending on such matters as whether there are:
- -Pre-marital
assets. Some jurisdictions allow and even encourage the courts to
divide even a party’s premarital assets (England). Others do not (New
York).
- -Trust
assets. Jurisdictions vary considerably in their treatment of assets
that a spouse has placed in trust. Some jurisdictions will “pierce” the trust (Colorado).
Others will not (Japan)
- -Inherited
assets. Many jurisdictions do not divide assets that a spouse has
received as an inheritance. Others do (Netherlands).
- -Gifted
assets. Many jurisdictions do not divide assets that a spouse has
received as a gift.
- -A
pre-nuptial agreement. Some jurisdictions do not recognize international
prenuptial agreements as binding. Jurisdictions vary
significantly in the bases upon which prenuptial agreements may be invalidated
or restricted, in the nature of the burden of proof concerning validity and on
other critical factors concerning their applicability.
- -“Bad
conduct.” Some jurisdictions punish adultery, criminally and by a
financial award to the “innocent spouse” (Korea). Others allow a divorce
for mere incompatibility (California).
5. Analyze the rules concerning children.
Jurisdictions around the world vary enormously in their treatment of children upon a divorce.
Issues include:
Jurisdictions around the world vary enormously in their treatment of children upon a divorce.
Issues include:
- -Sole custody
versus joint custody.
- -Minimal
visitation rights to a noncustodial parent versus liberal visitation rights.
- -Male-dominated
approaches versus female.
- -National biases
versus impartiality.
- -Religious
biases versus impartiality.
- -Freedom to
relocate versus limited relocation.
- -Freedom to take
children overseas versus inability to do so.
An analysis of these matters must consider not
only the rules on paper but the rules in practice. Enforcement issues may be
critical.
6. Select the jurisdiction.
Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.
Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.
7. Advise as to the steps now to be taken.
Our advice is frequently required to assist with the implementation of the strategy so as to:
Our advice is frequently required to assist with the implementation of the strategy so as to:
(a) Maximize the likelihood that the jurisdiction in question will
indeed be the jurisdiction that actually handles the matter.
(b) Minimize the likelihood that the other spouse will succeed in
bringing the case in a less attractive forum or in moving the case from the
better forum to a less attractive forum.
(c) Maximize the likelihood that the jurisdiction in question will view
the facts of the case in as favorable a light as possible.
Caveat: Attorneys in our firm are admitted to practice law only in
the States of New York and New Jersey. Any information that we provide
concerning the law of another jurisdiction is subject to a client obtaining
legal advice from counsel in that jurisdiction. When appropriate we will retain
the services of local counsel to assist us in providing advice to a client; the
client will be responsible for the payment of the fees of all such local
counsel.