How to Serve Divorce Papers Overseas

South Africa Law And Justice
A gavel is seen on a judge's bench with an illustration of a South African flag in the background. (Image: NiroDesign/iStock/Getty Images)

A divorce is a civil action, in much the same way as is a lawsuit for damages. No decree of divorce will be considered legally valid unless your spouse was legally notified of the divorce proceedings. At least three different sets of law will apply--international law, the divorce law of your state, and the law of the jurisdiction in which your spouse is located. Because of this, only general instructions on serving divorce papers abroad can be given, without reference to a particular U.S. state or foreign country.

Step 1

File the divorce petition and summons with your local court. In most cases, the appropriate court will be the state court with jurisdiction over your residence, or the location where the majority of the marital property is located.

Step 2

Locate your spouse. You will need to know your spouse's location in order to serve him with the divorce papers--a procedure known as "service of process"--and you may need to comply with the law of the overseas jurisdiction concerning the method of service.

Step 3

Research the "long arm" statute of your state. The long arm statute will determine whether or not the local court will have jurisdiction over your spouse, depending on the nature and extent of your spouse's contact with the state in which the court sits.

Step 4

Prepare an affidavit of waiver of service of process and send it to your spouse along with a copy of the summons, if your spouse is not trying to evade service of the divorce papers. Ask your spouse to sign it at a U.S. embassy or consulate in the presence of a notary public, who will have to place her seal on the affidavit. If your spouse agrees to waive service of process, you need not concern yourself with the service of process laws of his jurisdiction. Otherwise, continue to Step 5.

Step 5

Research the service of process laws of the jurisdiction where your spouse is located. In particular, you will need to know whether the country in which he is located is a member of the Hague Service Convention, which is a multilateral treaty dealing with international service of process. You will also need to know whether the overseas government requires the divorce papers to be translated into the local language.

Step 6

Send the summons to your spouse by the method required by the law of the overseas jurisdiction. There are several possible methods. The most reliable method is by Letters Rogatory, otherwise known as a letter of request, which is generally only available when the destination country is a member of the Hague Service Convention. In some countries, the papers must be served on a central government authority or an overseas agent, who will then guarantee delivery of the divorce papers to your spouse. Other, less effective means include delivery by registered mail, return receipt requested; or publication in an overseas newspaper.

Tip

International divorce is a complex matter. Consult an experienced attorney for detailed legal advice.

Warning

A divorce decree that disposes of property might be enforceable only with respect to property located within the jurisdiction of the court that granted the decree. If you have property located abroad, you will have to approach the court of that jurisdiction and proceed under local law. If your spouse waived service of process, some countries will refuse to enforce a distribution of property located in their jurisdiction issued by a U.S. court.

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