Divorce & Leaving the Country

by Tom Streissguth

A difficult issue that sometimes arises in divorce is travel abroad by one of the parties involved in the case. Divorcing parents may also contend over the removal of a child out of the country. Moving abroad does not prevent divorce; eventually the divorce will be granted. If one of the parties has moved abroad and does not return, the court will generally approve the marital settlement agreement as presented by the petitioner. If both parties leave before the hearing, the court will close the case. The parties will have to petition to reopen the case on returning, or simply file a new divorce action.

Restraining Orders

A party to a divorce keeps his freedom of movement, both within the United States and abroad. As long as he holds a valid passport, he may leave the country and return freely. The other party can always request a restraining order, but will have to provide convincing grounds for doing so. Normally, family courts issue such orders only when there is a convincing threat of violence or harm to the petitioner, and to keep the respondent a safe distance from the petitioner.

Property

In financial matters, a party to a divorce is barred from hiding assets that will become the subject of a marital settlement agreement. This includes moving the property abroad, or leaving the country with any property held in common, such as artwork, jewelry, money, investments or other goods. It is common practice during the discovery phase of the divorce action to request complete disclosure of all personal property, as well as several years' worth of tax returns, in order to uncover the location and amount of assets belonging to each spouse.

Children and Custody

In divorce cases, the parent with custody of the child is responsible for sheltering the child and has the right to move from place to place, but the non-custodial parent normally must give written permission for any foreign travel. This requirement is not necessarily a state law, but is commonly written into marital settlement agreements. If the child is then taken abroad without the non-custodial parent’s permission, the law considers it an abduction. The courts have the authority to order the child’s return to the United States. If a non-custodial parent fears the possibility of an abduction, he can file a motion for a restraining order in the court that has local jurisdiction over the child’s interests. The order has the force of law, but may be difficult to enforce if the custodial parent is determined to move abroad. Travel agents, airline companies, and customs officials will not take action to prevent the child’s movement, other than to check that travel documents such as passports and visas are in order.

Children and Passports

Like an adult, a child needs a passport to travel outside of the United States. The U.S. Department of State issues passports, which for minors are valid until their expiration date regardless of the parents’ marital status. A state family court may not revoke a passport. There is no way to legally prevent the child from leaving the country if the child has a valid passport, other than by having a court issue a restraining order. If a divorce action is still in the courts, and you fear your spouse may try to take your child abroad without your consent, you can petition the court to order the temporary surrender of the passport – but you must have good cause for doing so. Under a federal law passed in 2001, both parents must give written consent for the issuance of a passport for children under 14. If only one parent is available to give consent, he must present evidence that he either has sole custody or has the authority to request a passport. If you are worried that a custodial parent may apply for a passport without your knowledge, you may list the child with the State Department’s Children’s Passport Issuance Alert Program. The program will notify you if an application is filed, and may also deny the passport if there are legal grounds to do so.