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Wife Wants to Leave United States Before Divorce
My wife and I had an arranged marriage. There is a lot of pride and hurt feelings involved in the fact that it didn’t work out. We learned that she cannot have children — something I desperately want. I then asked her to adopt. She refuses. The marriage is over. It took months for me to get her to agree that we should just divorce. She is worried about the stigma of returning home to her family in India divorced. She is now a permanent resident here with a good job as a pharmacist — she does not have to leave.
Last week she agreed to sign the papers. I am giving her sufficient assets, even though we were not married long, so she can purchase a condo mortgage free. I think our deal is more than fair.
I just found out she gave notice at her job and bought a one-way ticket to India for Jan. 2. If she leaves, I will have a very hard time getting a divorce and it will take years for her to cooperate from India.
What can I do to make this happen faster?
You have a few options. If you live in Middlesex County, the two of you can sign all of the necessary paperwork including filling out your respective financial statement forms and joint petition for divorce. Take it to the Probate and Family Court one morning next week at 8 a.m. They will process your papers and send you to see a judge for a divorce.
If you don’t live in Middlesex County, depending on the county, things will likely take longer as you will have to wait for the court to grant you a date and it probably won’t be before she leaves. So, you have a few other options. You can file the paperwork with a request for an expedited hearing date because she is returning to India. If the court still won’t schedule an early hearing, your wife can file a motion to waive her appearance at the divorce hearing along with her affidavit. The affidavit would need to attest to the following facts: She read the agreement carefully and understands it, she reads and understands English, she was not coerced or unduly influenced to sign, she believes the agreement is fair and reasonable in the circumstances, and the marriage is irretrievably broken. She should hire a lawyer to represent her at the hearing in her absence.
Finally, if she refuses to sign next week, file a contested divorce and have her served before she leaves the country. If at that point she leaves without signing the agreement, after six months the court will grant you a pre-trial conference. If she does not show up, the judge can divorce you that day.
Handling a postnuptial agreement overseas
My fiance and I are getting married in Israel this summer and intend to live there for a few years before returning to Massachusetts. My parents have made all of my siblings sign a prenuptial agreement before getting married because of their business holdings, which someday we will inherit. My fiance also owns a business that he wants to protect.
In discussing options, we are planning to do a postnuptial agreement in Israel in case we end up staying there longer than initially planned. However, I am worried about whether that will be acceptable in Massachusetts assuming we do move back and something goes wrong here. What do you recommend?
While I am not well versed on Israeli law, I do have some basic knowledge of how this works. Unlike Massachusetts, if you execute a postnuptial agreement in Israel, you will have to submit it to a court there that will approve the agreement, thereby making it binding. At the time of court approval, you and your fiance will be asked a series of questions by a judge about your understanding, the voluntary nature of the agreement, whether you had counsel and whether you made full disclosure. This added layer makes the agreement that much more enforceable by Massachusetts standards so long as a judge here finds it fair and reasonable. For example, if he keeps his business and you keep your inheritance, and assets earned during the marriage are divided equitably, the judge should find it fair and reasonable.
The standard for a postnuptial agreement is similar in both locations. You should have an attorney representing each of you in the process so it is drafted properly and you are sure you have covered all necessary bases. The most important thing is full financial disclosure of all assets at the time of execution. That includes, to the extent you have any knowledge, your parents’ business holdings. Your parents should be well versed in their need to disclose certain information if they have been through this previously with your siblings.
Once the agreement is drafted, have it looked at by Massachusetts counsel to be sure it meets the state standards for enforcement. One thing you will need to get advice on is whether the agreement will follow Israeli or Massachusetts law upon enforcement. The agreement needs to be clear on which law will apply. While I cannot speak for Israel, in Massachusetts, if your agreement requires application of Israeli law, judges may grant what we call comity to Israeli postnuptial agreements and apply Israeli law to the divorce.
Comity is when the judge will look at the law of the other jurisdiction and determine whether their laws are substantially similar to ours, and, if so, our courts will likely uphold agreements or judgments from the other jurisdiction. Of course, this is not something you need to worry about unless the marriage doesn’t go as planned.
