Family Law Attorney Focusing on High Asset Divorce Service in Houston, Texas
Texas International Family Law Issues 2018-09-13T12:00:37+00:00

Texas International Family Law Issues

Table of Contents

Introduction
International Marriages in Texas
International Premarital and Prenuptial Agreements in Texas
International Divorces in Texas
The Hague Convention on the Civil Aspects of International Child Abduction in Texas
Conclusion

Introduction

Houston and Texas have become very, very international in nature.  According to the LA Times, Houston’s “stunning growth and high-volume immigration have turned it into the most racially and ethnically diverse major metropolis in the country, surpassing New York in 2010.”[i]  There are a number of reasons why this is true.  The oil industry draws people from all over the world.  The engineering industry, which supports the world-wide oil industry, is primarily located in Houston.  The Port of Houston is one of the biggest international ports in the United States.  International trade, in some form or another, is responsible for more than a third of employment in the area, 14 different governments maintaining trade and commercial offices here, and the presence of 32 active foreign chambers of commerce and trade associations.[ii] The Texas Medical Center in Houston is the largest medical center in the world, employing over 100,000 people, and each year it draws 16,000 international patients on average.[iii] The computer and tech industries in Austin pull in talent from all over the world.  The Dallas/Fort Worth area is a recognized trade and distribution center.  Texas has the second largest population in the United States and its colleges and universities draw faculty and students from all over the world.

This means that issues are now arising daily in Texas regarding international marriages, foreign marriages, international premarital agreements, international divorce and international custody issues.  I’ll discuss each one of these as individual topics.

International Marriages in Texas

All sorts of international marriages can be found in Houston and in Texas.  We have people who were married in their native country, and either directly, or indirectly, have ended up in Houston.  We have people from two different countries who met in a third country, got married in the third country, and then moved to Houston.  We have people who are from two different countries, who met, and decided to get married in a destination wedding in a country that neither one of them had any connection with.  We have people from two different countries who have met in Houston and decided to get married in Texas, in one of their native countries, or a destination wedding.  We have people living in Houston who have had military marriages, shipboard marriages, or proxy marriages.  In other words in Houston, and in Texas marriage has become globalized.

Regarding the validity of marriages, there is a presumption in Texas that a marriage is valid unless one party can prove to the contrary.

There are situations that arise where the Texas courts probably will not recognize a foreign marriage.  Obviously, if one spouse is already married, the Texas courts are not going to recognize a second marriage.  The Texas courts are not going to recognize a marriage to a descendant, or a brother or sister.  The Texas courts are not going to recognize an underage marriage, nor are they going to recognize a marriage of someone who is not mentally competent.  Finally, the Texas court is probably not going to recognize a marriage where it was not freely consented to.

There is a Hague Marriage Convention that is widely recognized throughout the world.

Of course, once a marriage is recognized, then you deal with the issues of marital property rights, spousal support, child support, custody, visitation, separation, and divorce.

International Premarital and Prenuptial Agreements in Texas

Many people in the United States, and many people in foreign countries, now realize that it is the intelligent thing to go ahead and enter into a premarital or prenuptial agreement defining their various duties, rights, and obligations at various stages in their marriage.

A premarital agreement may address some or all of the following issues:

  1. The rights and obligations of each party in any of the property of either or both of them whenever and where ever acquired or located;
  2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  3. The disposition of the property of separation, marriage dissolution, death, or the occurrence or nonoccurrence of any other events;
  4. The modification or elimination of spousal support;
  5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  6. The ownership in and disposition of the death benefits from a life insurance policy;
  7. The choice of law governing the construction of the agreement; and
  8. Any other matter, including personal rights and obligations, and not in violation of the public policy or statute of the State of Texas.

There are many considerations that must be taken into account when drafting an international premarital or prenuptial agreement.  Some of those considerations are:

  1. The citizenship of the parties;
  2. Where the parties reside at the time of the marriage;
  3. Where the parties own property at the time of the marriage;
  4. Where the parties are to be married;
  5. Where the parties are going to reside after the date of marriage;
  6. Where the parties expect to acquire property after the date of marriage;
  7. The possibility of changes, sometimes frequent, in the residence of the parties after marriage;
  8. What law is to be applied in construing and interpreting the marital agreement;
  9. The disclosure of financial information prior to the execution of the prenuptial or premarital agreement; and
  10. Creating an environment that shows that the prenuptial or premarital agreement was voluntarily signed.

In Texas the right of child support may not be adversely affected by the premarital agreement.  There is very little applicable case law on this issue, but the general feeling is that one can contract for the payment of child support, but cannot go below what would be the Texas Child Support Guidelines.

In some cases coordination issues arise with other countries, in which case it is necessary to obtain the services of a local attorney in order to advise the Texas attorney drafting the premarital agreement.  It just depends upon the complexity of the agreement and the issues involved.

A significant issue arises regarding the execution of the prenuptial or premarital agreement and ensuring that the prenuptial or premarital agreement is voluntarily entered into.  I recently represented a lady in a divorce who had signed a premarital agreement; she spoke English quite well, but did not read it very well.  As best I can determine, the total time that she had to read a premarital agreement, that was over 40 pages in length, was probably less than 30 minutes.  The agreement was not in her native language, and there is no way that she could voluntarily sign an agreement that she did not have an opportunity to fully and completely understand.  When I draft premarital agreements and language is an issue, I always obtain a complete translation of the premarital agreement and have it signed in both English and in the native language of the foreign individual(s).  Furthermore, while there’s no requirement that premarital agreements in Texas be executed in front of a notary, I think that in the years I’ve had in dealing with the enforceability of agreements, both in the United States and other countries, the solemnities afforded the agreement by having it executed in front of a notary are well worth the extra time and expense to get the premarital agreement executed and notarized.

I had an issue arise recently in Scotland.  We had trouble finding a notary that would notarize a premarital agreement that we sent over from Houston.  It seems that in Scotland you have to make an appointment several days in advance with a notary.  Ultimately the person in Scotland was able to find a notary and it was executed in front of a notary.

People are always raising the question about whether a premarital agreement will be upheld.  The answer is, a properly drafted and executed premarital agreement almost certainly will be.  All countries like people who anticipate problems and try to address the problems in advance.  Furthermore, it is generally not grounds to challenge a premarital agreement because it is one-sided, a poor agreement, or somebody subsequently does not like the agreement.

In Texas, the only way to successfully challenge a premarital agreement is to prove: (1) that a party did not sign the agreement voluntarily, or (2) that the agreement was unconscionable when it was signed and, before signing the agreement, a party was not provided fair and reasonable disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party. As I mentioned before, the fact that somebody signs a one-sided agreement is not going to let them escape the legal enforceability of that agreement.  Additionally, there is a Hague Convention on Matrimonial Property Regimes that recognizes the international importance of prenuptial and premarital agreements.

When I’m drafting an international premarital or prenuptial agreement, I like to start drafting it at least 90 days before the intended marriage date.  I like to have it delivered to the other party at least 60 days prior to the intended marriage date and have it back in my office at least 45 days before the intended marriage date.  That way all of the issues can be resolved without the pressure of planning for a wedding.

International Divorces in Texas

International divorces tend to fall into two very broad categories.  The simple divorces, and the very complex divorces.

The simple divorces generally involve a married couple, both living in Houston, both in agreement regarding all issues of property, and if there are children involved, all issues regarding the children.  In such situations, the divorce is just like getting two Texas residents divorced.

If the divorce is not a simple divorce, then an international divorce can become very complex very quickly.

The first issue in dealing with a complex international divorce is which country the divorce should be filed in.  In many cases that is determined by the residence of the parties.  If both parties are present in Texas, then as a general rule the divorce should be filed in Texas.  If one party is no longer a resident of Texas then the issues become much more complex, and it is frequently necessary to consult with an attorney in the locale where the nonresident spouse resides.

One of the biggest issues regarding international divorces has to do with the court’s “jurisdiction.”  If one party lives in Texas and the other party resides in a foreign country, a serious issue arises as to whether or not the Texas courts have authority to exercise “jurisdiction” over the foreign residents.  Needless to say Texas cannot reach out and simply resolve property issues, custody issues, child support issues and spousal support issues involving someone who has not had some type of contact with the State of Texas.

As a general rule, Texas has jurisdiction to grant a divorce, divide the property of the parties, make orders regarding custody, child support and visitation, etc., if:

  1. One spouse is a domiciliary of Texas for at least 6 months, then the other spouse living in a different nation may file a divorce in Texas seeking a divorce from the Texas residents.
  2. If the petitioner in a suit for dissolution of marriage is a resident of Texas at the time the divorce is filed the Texas court can exercise jurisdiction over the respondent who is not a resident of Texas if:
  3. Texas was the last marital residence of the petitioner and the respondent, and the suit for divorce is filed before the second anniversary on the date which the marital residence ended; or
  4. There is any other basis consistent with the Constitution of this State and the United States for the exercise of personal jurisdiction.

The issue of acquiring jurisdiction over a nonresident is very, very fact specific.  The attorney needs a detailed understanding of how the nonresident is connected to the resident, other than marriage, and the State of Texas.

Once the issue of jurisdiction is resolved, then it’s necessary to file a petition for divorce.  The court has to somehow notify the nonresident spouse about the divorce proceedings in the State of Texas.  If the nonresident spouse will sign a waiver of service of process in front of a notary, and that waiver is filed in Texas, that is sufficient notice.  However, frequently the nonresident spouse is not cooperative.  In that situation the Clerk of the Court has to prepare a citation — which is a notice to the respondent that they have been sued for divorce, and advising them to secure the services of an attorney of their choice, or otherwise a default may be granted against them.  That citation then has to be served in accordance with the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters. How this is done depends upon which country the nonresident is residing in.  Generally speaking, the citation is forwarded to the equivalent of the State Department of the foreign country, and then arrangements are made to pick up the citation from the foreign State Department equivalent, serve the nonresident, return the executed citation to the foreign State Department, put certain authentications on it and then it is returned to the Texas courts.

If the nonresident does not file an answer, then the petitioner may proceed with the divorce in Texas.  However, the petitioner still must prove all of the matters relating to property (separate, community, values, locations, adjusted right, etc.), prove what is in the best interest of the children, and then the court after hearing the evidence offered by the petitioner, the Texas court can go ahead and grant the divorce, divide property, and address child related issues.

There are unique situations where Texas can grant a divorce, divide the property, but cannot make any adjudication concerning custody of the children.  The United States has signed the Hague Convention on the Civil Aspects of International Child Abduction.  Furthermore, to implement the Hague Convention Congress has enacted the International Child Abduction Remedies Act.  Basically, before a U.S. court can exercise jurisdiction over children, in certain situations, a determination has to be made of the “child’s habitual” residence.  The child’s habitual residence is generally determined by looking where the child last lived, and for how long, before the parental conflict actually arose, and also looking whether one or both parents were exercising any type of right of custody.  The meaning of the right of custody under the Hague Convention is much broader in international law, than the traditional United States’ view of one parent having custody.  If a child has been a habitual resident of another country and the resident of that country was exercising a right of custody, then if the child is wrongfully removed to the United States, or wrongfully retained in the United States, the U.S. courts are commanded to return the child to the habitual residence.

I had a situation a number of years ago where a couple lived in Australia and came to the U.S. every summer for 2 weeks.  While here the mother filed a divorce, seeking custody in the Texas courts.  After a substantial amount of litigation, the children were ordered to be returned to their habitual residence – Australia.

When dealing with international divorces, assuming that the Texas courts have jurisdiction, and assuming that the Hague Convention does not apply, then you’re dealing with all of the issues that normally occur in a divorce, but are further complicated by the international nature.  Property must be divided, custody must be determined, visitation must be established, child support must be established, and issues of spousal support must be addressed.  Furthermore, because of the international nature, these issues can get very complex.

While Texas will not exercise the right to transfer title to a piece of property in another country, assuming it has jurisdiction over both parties in the divorce, it can order one party in Texas to do things that are necessary to legally transfer the property in the foreign country.  Sometimes it is necessary to coordinate international divorces with attorneys in different countries.

Several years ago, I handled a situation where we had a European citizen residing in Texas with his two children, who was married in Indonesia to a person residing in Indonesia, and who eventually expected to move from Texas to either the United Kingdom or to one of the European countries.  It was necessary to coordinate the drafting of the divorce decree with an Indonesian attorney and a European attorney.  Needless to say, this was not a simple divorce.

Once in a while you will find a resident of Texas who had been married to someone who has disappeared or is located in an area where it is difficult if not impossible to get them served with citation.  In those limited circumstances Texas can grant a “status” divorce to the Texas resident — meaning that the court can declare that the marriage no longer exists.  The court in a status divorce cannot address any issues regarding support, property division, custody, or visitation.

The Hague Convention on the Civil Aspects of International Child Abduction in Texas

The Hague Convention deals with the “child’s habitual residence,” the exercising of rights of custody, and whether a child was wrongfully removed from the foreign country to Texas, or is wrongfully retained in Texas.  If that is the situation then the foreign country’s Central Authority will contact the United States Central Authority who will help locate the child in Texas.  Then it’s necessary to file a petition for return of the child under the Hague Convention, which may be filed in the Texas courts or the United States District Court for the Southern District of Texas.  The U.S. Central Authority (the U.S. State Department) will then notify the Texas court of the Texas court’s obligations on The Hague Convention and International Child Abduction Remedies Act.  Normally, within 6 weeks the Texas court will hold an expedited hearing, and if the child has been in the State of Texas for less than 12 months the Texas court will order the return of the child to the country of the “child’s habitual residence.”  If the child has been in the State of Texas for over 12 months, the court may decline to order the child to be returned if “the child is now settled in the new environment.”

There is a provision in The Hague Convention stating that the court does not have to return the child if there is “grave risk” of injury to the child.  Essentially, what the case law has held is that the fact that the other parent may not be a good parent has nothing to do with grave risk.  The issue of grave risk is concerned about returning the child to a war torn country, or a country that does not have a functioning government.  Otherwise, if a child is wrongfully removed from a foreign country to Texas or is wrongfully retained in Texas the Texas courts will order the prompt return of the child.

Conclusion

As is evidenced by this article, international issues can be tricky and somewhat complex. The good news is that you don’t have to navigate any of these issues alone. If you have any questions concerning an international marriage, an international premarital or prenuptial agreement, an international divorce, or anything regarding the Hague Convention, please feel free to contact me at John K. Grubb & Associates, PC.

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[i] Mejia, Brittny. “How Houston has Become the Most Diverse Place in America.” Los Angeles Times, May 9, 2017. Accessed July 24, 2017. http://www.latimes.com/nation/la-na-houston-diversity-2017-htmlstory.html.

[ii], [iii] Visit Houston. “Facts and Figures.” Visithoustontexas.com. https://www.visithoustontexas.com/about-houston/facts-and-figures/