Navigating divorce across borders: Don’t just opt, make a choice
When asked by a reporter why he wanted to climb Mt. Everest, seasoned mountaineer George Mallory famously quipped, “Because it is there.” Mallory perished while attempting to climb Everest. Dear Indian overseas spouse, you do not have to climb the proverbial Everest. You do not have to opt for an Indian divorce jurisdiction just “because it is there”. You have a choice.
Non-resident Indian (NRI) women often face jurisdictional challenges when their marriages abroad fail. The dilemma is whether to file for divorce in India or the foreign country concerned. Historically, Indian marital law aimed to protect these women, who often moved overseas as dependent “tag-along” spouses with little autonomy. Once there, they typically experienced cultural shock, language barriers, isolation, and total financial dependency on their husbands. Thus, if their marriage failed, they did not have the knowledge, the means, or the resources (much less the desire) to stay back in the foreign country and fight their legal battles.
However, the NRI woman today is anything but a tag-along spouse. She is independent, skilled, has a sizeable net worth, and is well informed. Despite this, ingrained perceptions of her pitiful helplessness linger in our collective conscience.
As an international family law practitioner, I frequently encounter cases where NRI wives return to India just to initiate a divorce, often motivated by heightened emotions and misleading advice. Indeed, divorce and child custody jurisdiction can technically be established in India almost instantly upon arrival, but that is merely a momentary “one-up.” After years of judicial delays and appeals she may well eventually get a divorce but will most certainly lose considerably on the financial front.
If we were to analyse an Indo-US divorce, bearing in mind that state specific rules in the US may vary on certain issues, here’s what to consider:
Unless mutually consented to, Indian divorces are primarily fault-based. Thus, unlike in the US, an NRI wife must come up with a “ground” to seek an Indian divorce.
In the absence of a US court order allowing her to do so, if she has returned to India with the child(ren) of the couple without the knowledge or consent of the father, under the US law, she has committed International Parental Child Abduction, a serious felony charge.
Suppose she files for divorce in India first, a US court might defer to the Indian court’s divorce jurisdiction and will stay any parallel proceedings until the Indian court comes to a final resolution.
However, the US court will not give up its child custody jurisdiction, especially where the mother has committed child abduction. Instead, it will immediately order the mother to return the child for a final custody determination. If she fails to do so, the father will be granted sole legal and physical custody, and she will be held in contempt. The father may well initiate a criminal complaint against the mother and a Red Corner Notice, or an Interpol alert may be issued.
In both India and the US, child custody is determined based on the best interest of the child. In New York, custody has two parts: Legal and physical, which can be joint or sole, with joint legal custody being common. Efforts are made for the child to spend time fairly equally with both parents. Indian custody determination follows a similar approach. However, in the US, there are no gender-based preferential custody rights.
Most US states have standard child-support and spousal-support calculators, but judges can deviate from them. In India, there’s no fixed formula for calculating support, though the determining factors are similar to the US. The term ‘maintenance’ in India has a broad scope, but there is no concept of matrimonial property in India, meaning no division of assets between spouses upon divorce. Unlike the US, a wife would generally not be entitled to an equitable or equal division of assets. Indian financial disclosure rules might be less effective against husbands living abroad. Indian courts may revoke an NRI husband’s passport for non-cooperation, though this is not the norm, and also does not work against husbands who are not Indian passport holders anymore. Additionally, Indian courts would not issue orders regarding assets located in foreign countries. Enforcing any financial support orders in the US would be challenging for the NRI wife because of failure to return abducted child, forum shopping accusations, and a possible contempt.
US divorce jurisdiction is determined by state-specific residency requirements (typically 6 to 12 months), not by parties’ citizenship. Regardless of immigration status, religion, or nationality, as long as the residency requirement is met, a US court can handle the divorce. Even if a marriage occurred in India and was not registered, it doesn’t impact jurisdiction.
For NRI wives facing domestic violence, all US states offer free support programmes. Serious domestic violence claims can form the basis of a motion for international child relocation. Many NRI wives’ children are US citizens, and custody disputes may result in difficulties renewing children’s passports.
Indians form the world’s largest diaspora. NRIs must know their rights abroad. Returning to India is an option, but doing so haphazardly is a recipe for disaster.
(The writer is an international family law expert and practitioner licensed to practice law in the State of New York and India)
