By Ogochukwu Victor Onwaeze, esq
In the first two installments of this piece we discussed the validity of your marriage in the United States based on different scenarios and different types of marriages especially those done contracted outside the United States. We concluded that the validity of your marriage is determined by the law of the place where it is contracted provided that such law is not deemed to be contrary to public policy by a United States Court.
Marriage, a good and enduring institution, sometimes has to end. We will deal now with the issues that may arise in the course of dissolution of a marriage deemed valid by a United States Court.
The general rule is that the validity of a dissolution is determined by the law of the court where the dissolution action is heard. As such, a marriage can be dissolved anywhere irrespective of the place where it was contracted, so long as there is compliance with the laws of the place where the dissolution action is brought. The marriage that is contracted in Nigeria, even under customary or Islamic laws can be dissolved by a United States Court. A marriage contracted in the United States can be dissolved in Nigeria. And this is irrespective of the fact that one of the parties does not reside and has never resided in the court of jurisdiction.
For the judgment of dissolution to be valid, the court must have jurisdiction. The paramount factor for most courts is that one of the parties must meet a residency requirement before bringing the action. There may be additional requirements depending on the particular court but we are unable to discuss all the minute details. Residency requires that one or both spouses must have been resident in the area where the court is located for a certain amount of time prior to commencing the action. These are various time limits for different jurisdictions. In California, for example, one of the spouses must have been resident in the State for at least six months and in the county where the action is commenced for at least three months. The residency requirement is to prevent forum shopping where a spouse files the action in the court of a state with more favorable dissolution laws than the one where they reside. One thing to bear in mind is that the spouse filing for dissolution need not file where they reside. They have the option of filing in the jurisdiction where their spouse resides, if that forum has more favorable laws than the jurisdiction where they themselves reside. If a couple get married in Nigeria and one of them relocates to the United States, the other spouse who has never left Nigeria, can commence a dissolution action against their spouse in the United States once that spouse meets the residency requirement of the courts where he or she resides. Conversely, a Nigerian spouse who gets married in the United States, lives here with the spouse for years and then relocates to Nigeria, can get their marriage dissolved according to Nigerian Laws, once they meet the jurisdictional requirements of the Nigerian Courts. It is irrelevant that their spouse is not a Nigerian.
Not only must the spouse have to meet the residency requirement of the court where the action is filed, the court must also acquire jurisdiction over the other spouse. It is not the filing of the dissolution action that gives the court jurisdiction over the respondent spouse, but the service of the summons on the respondent spouse. If two spouses, living in different jurisdiction have filed dissolution proceedings in the courts where they live respectively, it is not the court of the spouse that filed first that gets to handle the case. It is the court of the spouse that served their own summons on the other spouse first that gets jurisdiction over the case. Thus, if one spouse lives in the United States and files for dissolution here, but for five years does not or is unable to serve the summons on the spouse that lives in Nigeria, and the spouse that lives in Nigeria then files a dissolution action there and succeeds in serving their own summons immediately, the court in Nigeria will have jurisdiction over the parties.
Where the spouses live in different jurisdictions, it is important for a spouse to have the court of their residency be the court of jurisdiction. For one, they are probably more familiar with the laws of the place where they reside and secondly it is rather difficult to litigate an action in a court far removed from where one lives. Imagine a spouse living in the United States having to litigate a dissolution proceedings commenced by the other spouse in Nigeria and vice versa, especially if that spouse has never lived in the other jurisdiction. The non resident spouse will need to hire an attorney that lives in the other jurisdiction, which would probably be more expensive. There is the added difficulty and expense of meeting with the attorney to prepare the case and traveling to the forum jurisdiction to attend hearings etc. Therefore, if you decide that the marriage is truly over, it is important to file and serve your action immediately, even if you do not proceed with litigation at that time. Once there is service, your court retains jurisdiction, even if you decide to take some time to think things through. In California for example, a dissolution action can remain on file, without trial and or finality for five years.
Assuming the spouse commencing the action has met the jurisdictional requirements and also served the respondent spouse with the petition, thereby perfecting the proceedings where they reside, the questions is, what can your court do for you?
There are several issues involved in a dissolution, especially where the spouses have been married for a long time, have acquired property and have minor children. We will not discuss the scenario where both spouses live in the same jurisdiction for in that instance the court has jurisdiction over all the issues.
Where both spouses live in different jurisdiction, two kinds of jurisdiction are in play; In Persona jurisdiction and In Rem jurisdiction. In Persona jurisdiction means jurisdiction over the person, while In Rem jurisdiction means jurisdiction over property. The perfection of jurisdiction discussed above, would generally give the court only In Persona jurisdiction, (jurisdiction to dissolve the marriage) while In Rem jurisdiction (jurisdiction to determine property division, child custody and support) may or may not be conferred without the consent of the non resident spouse.
So why is In Persona jurisdiction so important? In the beginning, we noted that the validity of a dissolution is determined by the laws of the court where the action is heard. Some states in the United States and most jurisdiction outside the United States, including Nigeria have dissolution laws based on fault. California, on the other hand for example, has a no fault divorce system. In the courts operating the fault system of dissolution, the petitioning spouse has to show that the respondent spouse did something wrong, such as adultery, failure to care for the family, abandonment, cruelty etc. In the no fault system, the petitioning spouse only has to allege (not prove) that irreconcilable differences have arisen in the marriage, that the marriage has broken down irretrievably and that there is nothing the court, counseling or time will do to repair the marriage.
In other words, it is very difficult, if not impossible for a recalcitrant spouse to get a dissolution in the fault system without the consent of the other spouse. In the no fault system, the consent of the other spouse is not necessary and there is no need to air the family’s dirty laundry in a public forum. In the no fault system, a spouse can be as bad as they want to be and still be able to file an action to dissolve the marriage and obtain a dissolution from the court. A lot of people would criticize this system, but personally, it is the preferred method. This is because, marriage should be an at will relationship. If one person is tired and wants out, they should be able to do so. Sometimes, marriages, like some other relationship, may end, not because anyone had done anything wrong, but because it is just not working out between the spouses for several reasons. In such a case, why force the parties to remain together. Secondly, in the fault systems, some non petitioning spouses refuse to consent to the dissolution, especially where their spouse has been behaving badly and they have been blame free to a large extent. In this case, the spouse that has been behaving badly is unable to dissolve the marriage. But it is hard to understand why one would want to remain married to a spouse who has been behaving so badly that the union is basically a life in hell or bondage. Thirdly, where no property or children are involved, why spend the time and money trying to prove who is or who is not at fault, when evidently the marriage is over.
Regarding In Rem issues, different rules apply.
Child custody jurisdiction is conferred on the court where the child lives. If you commence a dissolution action but the minor children of the marriage do not reside in that jurisdiction, the court will dissolve the marriage but will not determine custody of the children. And because child support is a factor of a custody order, that same court cannot order support payment. Assume a spouse got married in Nigeria, have children and years later one of them moves to the United States and files for dissolution, but the other spouse has never left Nigeria. The court here can, by the fact that the children live here, make a custody order as well as order child support against the spouse in Nigeria which order can be enforced in Nigeria. More importantly, the support amount will be based on the formula of the court where the children live. Once made, the support order remains valid and enforceable until changed, even if the children move out of the court’s jurisdiction. Thus a spouse that obtains a custody and support order in the United States and then relocates back to Nigeria with the children will still be able to enforce the custody order and collect the support amount (dollar equivalent) in Nigeria from the other spouse. Equally, if both spouses live in the United States and obtain a dissolution here, if the spouse awarded custody of the children then move back to Nigeria with them, they will be able to continue to collect the child support from the spouse remaining in the United States, without any adjustment for the reduced cost of living in Nigeria.
Property issues are more complex where both spouses do not at the time of dissolution live in or have never lived in the court of jurisdiction. Space will not allow a full discussion of property issues. Suffice it to say that if the respondent spouse does not live in the court of jurisdiction, then unless they consent by making a general appearance in the case, the court will not be able to decide property issues except as to property that is located within the court’s jurisdiction, or in a community property state, property that was acquired while both parties resided within the court’s jurisdiction.
One common complain is that property division laws in the United States are unfair, because “the woman takes half of what the man labored to work for all his life”. This an erroneous statement. First, not all states in the US operate the community property system. In fact, there are only nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin with Alaska being an opt-in community property state that gives both parties the option to make their property community property. The rest are called equitable property division states.
Secondly, it is only property that was acquired by the spouses during the marriage that is divided equally. Property acquired by either spouse before the marriage remains their own and so is property acquired by either spouse during marriage as a gift or inheritance.
On a personal note, the community property laws work better and are more equitable than what obtains in most other places including, Nigeria. It is a recognition that a stay at home spouse contributes equally to the financial success of the household as much as the spouse that goes to work everyday. By nature, women bear the disability burden of procreation, stay home to nurture the children and generally sacrifice their career and finances for the well being of the family. It is only fair that they be guaranteed some form of financial stability for this sacrifice. In the rare instance the reverse works for the man as well. Some stay at home fathers get to share in the income generated by their wife during the marriage. Being a male dominated society, of course, it is hard to find stay at home fathers amongst our community. There are several tales of women, in Nigeria, who have been rendered destitute after more than thirty years of marriage by the husband throwing them out of the house without financial provision. The lack of financial security engendered by an inequitable property division law may have some severe consequences. One, the woman is forced to remain in a loveless, violent and unsavory marriage just to ensure financial provision for her and her children. Two, the male may use the threat of financial ruin to blackmail the wife into tolerating all his indiscretion and remaining with him, against her will. Thirdly, the woman who seeks financial security, so as not to be faced with destitution on dissolution, would pursue their careers and finance to the detriment of the upbringing of the children.
Ogochukwu Victor Onwaeze is an attorney practicing in California and can be reached at email@example.com or 213-738-5066. The views expressed here are the opinions of the writer. Please consult a qualified attorney to discuss your specific situation and to obtain complete legal advise that apply to your case.
this is nice and educating piece , i am Lawyer practicing in Lagos Nigeria and coincidentally going through a divorce proceedings at the moment with my ex living in the United States.