The Intersection of Cross-Border Divorce and International Property
By Karie J. Boyd, Attorney and CEO
Getting divorced can be complicated enough, but if you live in the United States and own property in Mexico, it can be even tougher. The division of assets and debts is a major part of any divorce. When a marriage is ending, it is necessary to determine how marital property will be divided.
The first issue in any cross-border divorce case is jurisdiction. Jurisdiction refers to which Court has the authority to hear your case. More than one jurisdiction can have jurisdiction of the case and the one that should be hearing your case will depend on you and your spouse’s contact with the location and which location is most convenient.
For those traveling back and forth between Mexico and California, one important consideration is whether a Mexican divorce will be recognized as valid stateside. Ordinarily, California courts will not recognize a divorce obtained in Mexico if neither spouse had a “domicile” in Mexico. Domicile is different than residency. It refers to the place where you voluntarily establish yourself and family, not merely for a special or limited purpose, but with a present intention of making it your true, fixed, permanent home and principal establishment. The rule that a domicile of at least one of the spouses is essential to give the court jurisdiction, or the authority to hear your case. Thus, a Mexican mail-order divorce is absolutely void and will not be recognized. On the other hand, a Mexican divorce may be recognized in California if the filing spouse established a domicile there.
Cases dividing property across borders can take longer, as efforts are made to establish the ownership and whereabouts of money, property and other items. It is necessary to understand both property division laws in California, as well as the property division laws that apply in the country where assets are located. California is one of nine community property states in the country. All property acquired during the marriage, wherever it is located, is considered equally owned by both spouses. An exception to this is where property was acquired through inheritance, in which case the property is the separate property of the acquiring spouse. However, the community property standard is applied even if only one spouse earned income during the marriage to obtain property. The theory is that both spouses, whether working or not, contribute equally to the marriage.
In general, real property, such as the property on which a house sits or other land, is governed by the law of the location of the property. By contrast, personal property, such as bank accounts and vehicles, is typically governed by the law of the residence of the owner. However, when it comes to the division of property in a divorce case, California law provides that the court can divide any and all property owned by the husband and wife in a divorce when the court has personal jurisdiction over both the husband and wife, no matter where the property is located.
California’s laws also place significant disclosure requirements on parties to a divorce case with regard to property they own. Both parties are required to disclose everything that either of them own, owe, or earn, regardless of when it was acquired or who currently possesses the asset. Once the court in California has jurisdiction over the person who owns or controls the property, including in connection with the foreign real property, the parties will be required to disclose it.
If you are contemplating divorce and have property in Mexico and California, you should make sure your lawyer has the experience to handle to complexities involved in cross-border property disputes. For more information about cross-border property division divorce, contact the offices of Boyd Law by calling (619) 232-1206. With offices in San Diego and Spanish speaking employees, Boyd Law has the experience and resources to represent clients who have property on both sides of the border.