Here’s an interesting comment which just came in to my recent article about where a foreigner can get a divorce if s/he marries in the Philippines. This reader has quite a few questions, certainly enough to break down his comment and make a full-fledged article to answer at least some of his concerns.
Here’s his first area of concern, along with my thoughts on the matter. Please remember I am not an attorney and everything I write here is my personal opinion only. Consult a lawyer with legal concerns, please, just as I would hope you would consult a doctor for medical issues … please? Grumpy old men on the Internet are not a reliable source of professional advice … even though we are cheap … but you certainly get what you pay for.
I’m thinking about marrying my Filipina girlfriend in Davao and making that my home with her. I’m 45 and a divorce would ruin me financially and make retirement nearly impossible.
Anyone who marries without at least a thought about the future of the marriage would be, at the least, naive. But if you really feel you have serious concerns about such an outcome, my opinion is you are not ready for marriage. Of course any marriage can break up. But if you enter into a marriage with such specific thoughts clouding your mind my first question really would be, why the heck do you want to get married in the first place?
I know a number of long-term couple partnerships here in the Philippines who are no married and have no intentions of marrying. In today’s day an age, if you’re not sure, then why make the jump. If you are not married, then for sure, you can’t get divorced … you can take that advice to the bank.
If You Do Marry, Make Sure It’s For The Right Reasons
One thing which comes to mind is that a lot of foreigners I have known personally have married really just for the sake of having a Filipina wife to sponsor them for a 13 series Philippine Permanent Resident Visa. I certainly am not suggesting that this reader’s reason for marriage includes these thoughts, but I am telling you, based on personal experience DO NOT MARRY to get a Permanent Visa! It may well turn out to be the most expensive visa you ever got “for (almost) free … trust me on this.
If in the unforeseeable future she wanted a divorce, could she divorce me and sue me for spousal support in the United States?
Let’s assume that I did not ever sponsor her to come to the US, etc., but that the marriage was legal and properly done in the Philippines.
Would it be possible for her to hire an attorney in the US and start legal proceedings? Is it possible she could be successful?
Well nothing is impossible when it comes to courts and legal outcomes. However your scenario as written out above is, IMO, virtually impossible. Here’s why I think it is 99.9999% impossible:
Courts Have Their Limits and Boundaries
First: In order to file for divorce a person has to file a court case for divorce in one of the 50 US states (or the District of Columbia, or Guam). That is about 52 sets of laws regarding divorce that have to be taken into account. I don’t know the details of divorce law in all 52 but I do know that the vast majority requires one or both parties to the divorce suit to be legally resident and/or domiciled within that state. And if you don’t know the difference between being resident and being domiciled that further points out why I say you need a lawyer for these sort of questions) in the legal entity where the case is filed.
Remember that no state court has jurisdiction in a foreign country, thus no person, (either a lay person or an attorney) can normally file any case in that court unless they establish one or both parties to the case are within that court’s jurisdiction.
Even in a “Divorce Mill” Entity Like Guam, There Are Residency Requirements
You really should read up on what I wrote here: My Marriage is “Broken”, Where Can I Get a Divorce? in part I explained:
How Easy Will a US No Fault Divorce Be?
Answer is, “It Depends”. There are actually 50 different divorce laws in the USA, 52 counting DC and Guam, and virtually every one of them is different.
Some states allow very easy “no fault” determinations, some others still apply much more strict standards.
Some US states allow just one party to be present in the state and file the divorce, others make it a requirement that both parties be under the control of the state before a divorce can be granted.
Residency Is Often An Issue
In all cases, there are residency requirements for one or both of the parties, and they can be as long as 6 months or a year.
So even though the chances of a legal divorce are much better for a non-Filipino, it is no “piece of cake” to get a US divorce.
And if one is dealing with a state with residency requirements … especially if the other party in the marriage has to be a resident as well, it can be a very difficult thing to get done.
Do You Have That Much to Lose?
The second point I would like to bring out is to rationally consider what is at risk. Supposing she somehow succeeds in getting a US court to grant a divorce and also to win a judgment against you for spousal support. You need to think through what she could possible get.
An order from a US sate court is virtually impossible to enforce in the Philippines. That’s one reason there are literally thousands of US men here in the Philippines “hiding out” from such orders.
They are difficult in the extreme to even serve legally on the respondent, and virtually impossible to enforce.
The Philippine courts can not enforce a US court order here in the Philippines, so without trying to sound too flippant, a judgment against you in a US court becomes a sort of “who cares?” issue.
Exercise Preventive Planning
Make sure before you marry that your property is all in your name and yours alone. Anything you own before your marriage normally is not ‘touchable” in a subsequent divorce. In particular, make sure you don’t just marry and then put her name on things like savings accounts, IRA’s, 402K plans, property deeds, etc.
Once you marry she owns half of everything you acquire after the marriage, but normally nothing from before. Open a joint bank account AFTER you marry in order to live here, but don’t co-mingle funds that were your before the marriage.
Second, will you be living on a pension, say US military retirement, Civil Service retirement, Social Security, etc. In most cases these are not “touchable” by a wife who comes along after you have already earned them.
Child Support is one notable exception to this general rule, but alimony or “spousal support” normally is not.
Just be sure to keep in mind the first part of my advice … keep your “own’ income separate, even after marriage. An ounce of prevention is worth a pound of cure. Once you start dumping things into a joint account, all bets are off.
“Pay Yourself” from your own bank accounts where your income “lands” by moving money into your joint account and you should never have a problem.
Good luck and Godspeed to you, whatever your decision.
Very enlightening Dave, thanks.
Good common sense advice Bob
Thanks, Michael. Dave Starr did a good job with this article!
Good article..
Plus you might want to look into a pre-nuptial agreement that spells out yours, mine and ours. But again you need advise from legal council.
Excellent thought. You can do a pre-nup in the Philippines.. Here they are typically called “Marriage Settlements”, but aside from the fact you absolutely need professional legal advice for this, the main reason I didn’t bring it up are the fact that it’s going to be difficult indeed to make a workable agreement that will be honored in both the Philippines and the foreigner’s home country.
Just as US court orders are virtually un-enforceable in the Philippines, a Philippine court order is essentially worthless in the US … civil courts in either country don’t normally have jurisdiction in the other country.
In addition pre-nups are very hard to “make stick”. You better have hundreds of thousands dollars of assets to protect, because you will certainly spend a small fortune in legal fess drawing one up for each country and then enforcing it if the divorcing spouse tries to “bust” it.
One other issue, if you do decide to take this route, don’t make the mistake that so many on this path do … using the same attorney for both husband and wife.
This makes the document laughing easy for a sharp attorney to tear the whole agreement to shreds … because one attorney can not adequate represent opposing sides in a matter like this. In fact this is considered perilously close to mal-practice by many.
If the husband has an attorney draw up a document and the he and the wife both sign it, the document is essentially worthless because the attorney, by law and ethics is representing the husband alone and the wife has a strong argument that she did not receive competent advice from an attorney “in her side”. before signing.
Pre-nups are essentially easy to “bust’ and expensive as the dickens to defend. If I thought I needed one that bad, I’d stay single 😉