The strategic international divorce planning process
The strategic international divorce planning should include the following:
Analyze the Family's Entire Economic Picture. This is exactly what any divorce lawyer does in a conventional divorce situation, but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.
Consult with the Client as to Goals. Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client's real needs and desires. For example, there is no point in advising a client to move assets into an offshore trust if that will destroy a relationship with the other spouse or drive an inappropriate wedge between the client and other family members. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does the client believe that the other spouse will join him there? How about the children?
Provide an Initial Analysis of the Law in Several Different Possibly Appropriate Jurisdictions. The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which either or both of the spouses have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in the family there, as well.
Focus on a Few Jurisdictions. The strategic international lawyer will then usually consult with counsel in those jurisdictions that seem to hold the most promise. Counsel should analyze, separately for each “target jurisdiction”:
The Jurisdictional Rules. Will the courts in the target jurisdiction accept the anticipated divorce case, including all financial and child custody issues? What “facts on the ground” will need to be accomplished in order to satisfy the conditions?
The Grounds for a Divorce. What will the client need to prove in the target jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so?
The Nature of the Assets that are included in the target jurisdiction as property that is subject to being apportioned between the parties upon a divorce or that can be considered in making an economic apportionment between the spouses.
The Method of Asset Division that is used by courts in the target jurisdiction.
The Relevance of the Conduct of the Parties to the division of assets in the target jurisdiction.
Spousal Maintenance. What are the rules concerning spousal maintenance (alimony). For what period of time might such payments be required? What is the likely amount of the award? Does the jurisdiction require a “clean break” whereby the spouse must receive a large lump-sum sufficient to generate the income needed to meet lifetime maintenance requirements?
Enforceability issues. Whether there are any specific factors which make it particularly easy or difficult to enforce an award in the target jurisdiction.
Particular issues. Each case raises specific matters that must be analyzed, depending on such matters as whether there are: trust assets, pre-marital assets, gifted assets, inhabited assets, pre-nuptial agreement, post-nuptial agreement, analyze the rules concerning children.
Select the Jurisdiction. Having provided the client with the necessary information concerning each such jurisdiction, the attorney and the client, with such additional input as may be required from local counsel or others, agree on a strategy.
Implement the Strategy.
Strategic International Divorce Planning makes eminent sense for international clients with serious assets to protect. I am admitted to practice only in Russia, but work as appropriate with lawyers throughout the world.
