It’s a difficult question when you have spouses who have been living in another country. If both spouses are active duty folks, it’s a little bit easier of a question. If you have children and the children have been living with you in Germany, for example, and your military spouse does not consent to dealing with the child custody issues in the United States, or if there are no contacts with the United States, then you really have to do the child custody part in Germany. I did have this come up recently where the court in Florida decided that Germany courts had jurisdiction over the children because the children have been living there for five years. Florida didn’t have any contact with the children and couldn’t talk to the teachers to see what’s been happening with the children. There’s really no evidence that the court could hear about the children here in Florida. If you and your spouse are fairly civil, you want to wait and file for divorce in the United States because sometimes, things change in the future and you may have to go back to court.
You may want to change custody in the future, you may want to move to another place, child support might need to be changed, or alimony might need to be changed. You want to be able to come back to court again, and it’s usually a lot easier for folks to do that within the United States. Of course, I do not practice in Germany, so I’m not sure how easy it is to do actions there, but I know that traveling there isn’t as easy as it is traveling throughout the United States. I would always suggest to try to talk to your spouse and see if you can consent to filing the action within the United States. It may be something where you have to have an agreement on the custody issues to do that, because, like I said, if the children are six months elsewhere, then the court doesn’t really have jurisdiction unless both parties agree. I would say that it’s better for the spouses to file in the state of their legal residence, if they’re both in the same legal resident state. But if custody is going to be an issue, then they may have to go through bifurcation, where you break up the case into two different sections. They may have to do the custody of the kids in Germany courts or whatever country they’re in and then do the equitable division of property and assets and all that stuff in the United States. But it’s always better to have them moved to the United States, so that if you have to come back later, you can modify here in the states.
Ginger L. Dugan, a family lawyer at All Family Law Group in Tampa, Florida, has 10 years of experience in family law and handling complex cases.