In complex or high asset divorces, attorneys sometimes face property, such as a vacation home, located abroad. The question becomes, “is this part of the marital estate?” Yes. All property no matter where located is marital property. Indiana subscribes, under the Dissolution Act, to the one pot theory where all assets brought into the marriage, acquired during the marriage, or to the date of filing are assets of the marriage the court can divide.
This is settled law. This blog explores enforcement of an Indiana court order dividing or awarding one party a foreign parcel that may be titled in the other spouse’s name or joint names.1 The issue is how to enforce the Indiana Court’s order in a foreign country. Almost without certainty, this will require retaining an attorney in the foreign country. Wise domestic counsel may want to do so before the divorce trial to ensure the right type of evidence is put onto the record to effectuate obtaining an order most likely enforced in another country.
That said, this problem has long been recognized. In a number of areas of international law, the Hague Conference on Private International Law passed laws to address certain chronic issues, including the Hague Convention on the Recognition and Enforcement of Foreign Judgments and Commercial Matters in 1971. Unfortunately, there are few signatories to this treaty and it has been ratified by only a few countries in the Middle East and Western Europe.
Thus, the ordinary way such divorce awards are enforced is by any given country’s foreign judgment act, which will specify the procedures for enforcing a foreign judgment, such as to title a home in wife’s name, which she was awarded, originally a home titled in the husband’s name in the divorce. Where foreign languages are at hand, a certified translation of the order is required. Fortunately, a number of countries recognize other countries’ foreign judgments. Oftentimes there is other caselaw or other mechanisms to attempt to enforce a foreign judgment if there is no such recognition. However, this is often a long and tedious process requiring litigation in a foreign venue.
Knowing the foreign country’s recognition of an Indiana divorce decree in advance is key and may allow counsel to seek a different division. Thus, foreign real estate and other interests are divisible by the trial court, but may not actually wind up going to the person it is awarded to unless the Decree can be enforced.
We hope you find this blog post useful in providing information about Indiana divorces involving property located abroad. Ciyou & Dixon, P.C. advocates handle complex divorce cases with international dynamics, including international custody disputes through Indiana. This blog post is written as general information and is not legal advice or a solicitation for services. It is an advertisement.
- Nikolayev v. Nikolayev, 968 N.E.2d 872 (Ind.Ct.App.2012). This case looks at the division of a flat in St. Petersburg.