If you are a person with considerable assets contemplating the option of divorce in your forecast, or if you are the spouse of a person such as the one just described, it would behoove you greatly to first consult us for advice on a carefully planned Strategic International Divorce Preparation.
Preparing for an International Divorce
Are you the type of person that waits till the very last minute to act, or do you think it is much more beneficial to strategically plan your moves in order to better control the outcome? When you have thousands, hundreds of thousands or even millions in assets to protect or to go after; then opting for the latter rather then the foremost will make all the difference in the world.
Let’s say for the sake of argument that you are an American citizen and you are married to a Peruvian woman. Now let’s also say that despite your best efforts, you no longer wish to remain married, hence, divorce is on the horizon thus the decisions you make (or lack thereof) from this point forward will dictate a favorable or disastrous outcome. Here is where MONTEBLANCO & ASSOCIATES comes in to discuss your options in order to evaluate whether your case can or should be heard before a foreign or domestic jurisdiction. Careful consideration and analysis of applicable international laws will be factored into the equation by our experienced international attorneys in order to ascertain the best-case scenarios for your protection.
THE STRATEGIC INTERNATIONAL DIVORCE PREPARATION (SIDP)
Here is how we initiate the process:
- Evaluation of the Family’s Entire Economic Position
This is what a divorce lawyer does in an everyday divorce setting, but the strategic international divorce lawyer will pay close attention to the existing liaisons that the family has in other countries, from assets that are located overseas all the way to the possibility of relocating assets and possibly other family members to Latin American or European countries.
- Discus with Client Their Specific Goals
It comes as no surprise to anyone that divorce lawyers usually take bad situations and make it horrifically worse; that’s our G*d-given talent. At MONTEBLANCO & ASSOCIATES, we are particularly sensitive to the client’s manifested needs and desires. What would be the point in advising a client to relocate his assets to an offshore trust if that will place in great peril his relationship with his soon-to-be-ex? Or worse, if there are children involved, callous disregard for their situation may drive a permanent wedge between them and the acting parent. If need be, we bring in a specialist that discusses with the client their preparedness to move their entire life to a new country for a few years and all that this entails.
- Provide an Initial Evaluation of the Law in Foreigner-Friendly Jurisdictions
Our international divorce lawyers prepare an initial evaluation of the most appropriate jurisdictions in South or Central America. We also provide our client with an analysis that compares their current residency with jurisdictions where the client or his spouse have connections or interests in with the understanding that if and when a particular jurisdiction is chosen, the client and his family will probably have to relocate there for a determined period of time. Over the past decade, MONTEBLANCO & ASSOCIATES, has helped hundreds of clients in their asset relocation efforts and have successfully aided in the transfer of millions of dollars between jurisdictions.
- Strategic Focus on the Right Jurisdictions We consult with our associate counsel in dozens of jurisdictions throughout Latin America whom we have worked with before and are in a position to stand by their knowledge and commitment to providing quality work for our clients. We cautiously evaluate the following issues in each selected jurisdiction:
- Jurisdictional Regulation. What are the laws in the selected Latin American jurisdiction regarding anticipated divorce, including financial and child custody issues, pre-nups, recognition of foreign sentences, etc?? Does this jurisdiction contemplate modern divorce laws and are they a no-fault country?
- Grounds for a Divorce. What will the client need to prove before the selected jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so? What is the lead-time on this? What are the tentative costs involved?
- The Assets. Does the selected jurisdiction consider any assets transferred there before initiating divorce proceedings as Community Property? What actions need to take place prior to said transfer to secure said assets in favor of our client?
- Asset Division. Based on the criteria for the division of assets in Latin American countries, what are my best options?
- Relevance of Conduct of a Party. Is this a valid concern in the selected jurisdiction when it comes to assets division?
- Court’s Philosophy. How do the courts in Latin American view uncontested or adversarial divorce? What can influence a negative perception of the client? How do we go about mitigating this?
- Spousal Maintenance. What are the rules in Latin America regarding alimony and for what period of time is it required? What is the usual or tentative amount of the award and what does it depend on? Would this be influenced if the party’s conduct were brought into question?
- Enforceability Issues. Do Latin American countries allow for the enforcement of an award issued in a foreign jurisdiction? If so, how do we go about doing so or avoiding it (depending on the case)?
- Particular Issues. Each case raises specific matters that must be dealt with carefully and diligently. These can be but are not limited to:
- Pre-marital Assets. Some countries in South and Central America allow and even encourage the courts to evenly divide a couple’s premarital assets before hand. Not doing so explicitly tells the court that there is an implicit 50/50 division of the assets in question.
- Trust Assets. Jurisdictions vary considerably in their handling of assets that a spouse has placed in trust. While some countries may access the trust, others do not allow it.
- Inherited Assets. Most countries in Latin America do not divide assets that a spouse has received as an inheritance prior or during the marriage, however, any proceeds gained from the inheritance is community property unless other steps are taken to keep this from happening.
- Gifted Assets. Most jurisdictions in Latin America do not divide assets that a spouse has received as a gift from their spouse.
- Pre-Nuptial Agreement. Some jurisdictions in Latin America do not recognize foreign prenuptial agreements as binding legal agreements. Most jurisdictions in the region require an uncontested judicial proceeding known as Asset Division where BOTH parties must inform the court of how they intend to divide existing assets and how it will be in the future. This is the closest they come to prenuptial agreements. It is because of this ample difference in processes that most prenuptial agreements obtained in the US or Europe are readily invalidated in South and Central America.
- Questionable Conduct. Some jurisdictions in Latin America punish adultery by either spouse with a financial award to the affected spouse while others allow for a more expedient divorce for mere incompatibility reasons.
- Carefully Evaluate the Law Regarding Children.
Most jurisdictions in Latin America coincide in their treatment of children prior to a divorce.Issues include:
- Sole or Shared Custody.
- Minimal visitation rights to a noncustodial parent versus open visitation rights.
- National biases versus impartiality.
- Religious biases versus impartiality.
- Freedom to relocate versus limited relocation capability.
- Freedom to take children overseas versus inability to do so.
A thorough evaluation of these matters must consider not only the laws of the country on paper but most importantly the rules in practice. Enforcement issues are critical so an analysis of existing international treaties is usually performed.
- Choose the Jurisdiction.
Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.
- Advise as to the steps that need to be taken. Our advice is frequently required to assist with the implementation of the strategy so as to:
- Maximize the likelihood that the jurisdiction in question will indeed be the jurisdiction that actually handles the matter.
- Minimize the likelihood that your spouse will succeed in bringing the case to a less attractive forum or in moving the case from the better forum to a less attractive forum
- Maximize the likelihood that the jurisdiction in question will view the facts of the case in as favorable a light as possible.
- The financial consequences of being divorced in one jurisdiction versus another can make a big difference.
For example, the difference between getting divorced in Texas instead of in Peru can be staggering; while the foremost is a No-Fault State, the latter does not contemplate this alternative as an option. Likewise, the disparity between the practices of divorce courts in California as compared to those in Ecuador, and of the divorce courts in New York as compared to those in Honduras, are equally vast – or possibly even more so. Yet very few people do their homework on these critical issues at a time when the difference it makes can represent early retirement versus ten more years of work. They simply assume that wherever they live is necessarily the jurisdiction in which they must file. People walk in blind to what could very well be the most significant financial transaction of their life. When clients with a foreign spouse consult us about their forthcoming divorce, timing then becomes critical. When do you expect to separate or divorce? Keep in mind that there is much less that we can do if divorce is already knocking at the door, as opposed to when it’s only a discussion point, then it is of paramount importance that certain steps be taken in order to mitigate damages from dangerous fallout. In some cases, we even found it imperative for our client to patch things up, at least temporarily, until changes were implemented and assets were secured and all in favor of accomplishing better results in a different jurisdiction.
Do Let Us Know how we may be of service.