Q. I live in Sweden and my husband lives in Boston. Our daughter was born when we lived in Chicago but then he moved to Boston and I moved back home to Sweden when we broke up. Our daughter has dual citizenship. I would prefer to get divorced in Massachusetts because I will get more child support. My husband would prefer to get divorced in Sweden because he will pay less. He cannot file in Sweden because he is not a citizen. Can I file in Massachusetts even if I am not a citizen?
A. The issue is not that you are not a citizen but that you never lived together as husband and wife in Massachusetts. The way the law works, in order for you to file here, you would have to live here for a year or have lived here together as husband and wife with at least one of you still living here. The other exception is if one of you was living here and your marriage became irretrievably broken in Massachusetts – then the one-year residency requirement is not applicable. So, if you want the divorce, you will need to file in Sweden or else convince him to file in Massachusetts – if he files here, you can consent to jurisdiction.
Even if you convince him that he should file for divorce in Massachusetts, we can only divide assets and make a determination of alimony. We cannot adjudicate child custody because your child isn’t here, nor was she born here. So, the case would have to be split for purposes of child custody.
My suggestion, find a mediator either in Massachusetts or Sweden who can help you make compromises to file agreements in both jurisdictions. If you agree on a parenting plan and a child support amount you can, in theory, file that agreement both in Massachusetts and Sweden (under Massachusetts law it would need to be filed in Sweden first and registered here as a foreign judgment). If you can agree on the hard stuff, the actual divorce and where to do it should be easy.
Just remember, if you make parenting time hard for him as a way to get him to agree to other things – he has a remedy. He can file for access (i.e. parenting time) to your daughter under the Hague Convention on Civil Aspects of International Child Abduction. That same treaty that provides for return of kidnapped children, provides for parenting time for a left behind parent.
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