Can I File for Divorce in Washington If I Live Abroad or My Spouse Lives Abroad?

Maybe you took a job overseas and the marriage ended while you were there. Maybe your spouse went back to their home country and is not returning. Either way, you need to know whether a courthouse in Everett can end a marriage when one of you is on another continent.

Often it can. Under RCW 26.09.030, a Washington court can hear a divorce when the person filing is a resident of this state, is a member of the armed forces stationed in this state, or is married to someone who fits either description. The statute sets no minimum number of months of residence. The harder questions are whether Washington is still your legal home, what the court can decide besides ending the marriage, and how to serve papers abroad.

Who Counts as a Washington Resident When You Live Overseas?

In this statute, "resident" means more than keeping a mailing address here. The Court of Appeals explained in In re Marriage of Robinson, 159 Wn. App. 162 (2010), that residence under RCW 26.09.030 means domicile: living in a place in fact, together with a present intent to make that place your home. A plan to move back someday was not enough, and the spouses could not fix the problem by agreeing that Washington had authority. Both had moved to another state and sold their Washington house before the petition was filed, and the Court of Appeals vacated the decree.

A person on a temporary work assignment who kept a home in Snohomish County and has a return date is in a very different position from a person who sold everything and settled permanently in another country. A service member stationed overseas is not stationed in Washington, so the question becomes whether Washington is still that person's domicile. The article on divorcing a military spouse covers the service-related issues.

Only one of you has to qualify. If your spouse still lives in Washington and you are the one abroad, RCW 26.09.030 lets you file here as the spouse of a resident. The basics of the residence rule are in the article on residency requirements for divorce in Snohomish County.

Ending the Marriage Is One Thing. Deciding Money Is Another.

Ending the marriage and ordering an absent person to pay money or give up property are separate powers. To bind your spouse on property, debts, and maintenance, the court needs personal jurisdiction over your spouse.

Washington's long-arm statute, RCW 4.28.185, supplies that in a common situation. A person who lived in a marital relationship in Washington remains subject to Washington courts for all proceedings under the divorce chapter after leaving, as long as the spouse who files has continued to live here (or has continued to be a service member stationed here).

It is different when the absent spouse never lived in Washington during the marriage and does not take part in the case. The court may still end the marriage, but the financial issues may have to wait. Washington's statutes plan for this: RCW 26.09.080 on property and RCW 26.09.090 on maintenance both refer to a later proceeding after a divorce granted by a court that lacked personal jurisdiction over the absent spouse. A spouse who joins the case without objecting to jurisdiction removes most of this problem.

Property abroad raises one more point. In In re Marriage of Kowalewski, 182 P.3d 959 (Wash. 2008), the Washington Supreme Court held that a divorce court with authority over both spouses can decide their rights in real estate located in another country, even though a Washington court cannot directly transfer title to land outside the state.

Children Are a Separate Question

Whether Washington can enter a parenting plan does not depend on who may file for divorce. It depends on chapter 26.27 RCW. Under RCW 26.27.201, a Washington court can generally make a first custody decision only if Washington is the child's home state, or was within the last six months while a parent still lives here. RCW 26.27.021 defines home state as the place where the child lived with a parent for at least six consecutive months just before the case began, and RCW 26.27.051 tells Washington courts to treat a foreign country as if it were a state for this purpose.

As a result, a child who has lived abroad with one parent for more than six months may have a home state that is not Washington. The court here could grant the divorce while parenting decisions belong to a court in the other country. The article on which state decides child custody walks through those rules. Child support has its own test in RCW 26.21A.100, which lists the ways a Washington court can gain authority over a parent who lives elsewhere.

Serving a Spouse in Another Country

Your spouse has to be formally served unless they cooperate. Superior Court Civil Rule 4(i) lists the accepted methods for service in a foreign country, including service in the manner the foreign country's own law prescribes, personal delivery, mail requiring a signed receipt, and service under any applicable treaty or convention. Whatever method you use must also comply with any treaty that applies to that country.

The main treaty is the Hague Service Convention. In member countries, a designated Central Authority receives the documents and arranges service. The U.S. State Department cautions that member countries that objected to service by mail should not be served that way.

Three details affect timing. RCW 4.28.185 makes personal service outside Washington valid only when an affidavit is filed stating that service cannot be made within the state. Under Civil Rule 4.1, a spouse served outside Washington has 60 days to respond instead of 20. And under RCW 26.09.030, the 90-day waiting period does not start until the petition has been filed and the summons has been served. A willing spouse can instead join the petition or sign a written acceptance of service, which makes formal service unnecessary.

A Worked Example

Daniel lives in Everett. He and Mira were married and lived in Snohomish County for eight years. Fourteen months ago Mira moved back to her home country with their daughter, and neither plans to return.

Daniel is a Washington resident, so RCW 26.09.030 lets him file, and RCW 26.09.010 lets him file in the county where he lives. Because Mira lived with him in Washington during the marriage and he has stayed, RCW 4.28.185 gives the court authority over property and maintenance even though she is abroad. The parenting plan is the weak spot. Their daughter has lived abroad for more than six months, so under RCW 26.27.201 and RCW 26.27.051 her home state is probably not Washington. Daniel also has to serve Mira by a method Civil Rule 4(i) allows, possibly through her country's Central Authority under the Hague Service Convention.

Sort Out Jurisdiction Before You File

Filing in the wrong place, or serving the wrong way, can leave you with a decree that does not hold up or does not reach the issues that matter most. If you or your spouse lives outside the United States and you have ties to Snohomish County, the Law Office of Chad Foster can help you work out what a Washington court can decide and how to get your spouse properly served. Call 425.785.8679 to talk with a Snohomish County family law attorney.