Can a U.S. citizen and PR of Canada legally file for divorce in the U.S. rather than in Canada?

September 16, 2009 12:27 PM

My husband and I are U.S. citizens and Permanent Residents of Canada. Are we required to file for divorce in Canada because we're legal residents there? If it's permissible to file in either country, anyone know of pro's or con's for either choice?

I do know that in Canada there's a one-year waiting period (from the time of separation) required before filing. I'm particularly wondering if there are any known differences in how inheritance is treated in divorce. If it makes any difference, the state in the U.S. that I would file is Nevada, and the province in Canada is B.C.

posted by otfence to law & government (4 comments total)

You need to speak to a lawyer about this. Not you and your husband, you. There may be very serious differences in asset allocation depending on the jurisdiction.
posted by atrazine at 12:35 PM on September 16

You should find a lawyer. It shouldn't be difficult to find someone in B.C. who is versed in both Canadian & U.S. family law. I think most U.S. jurisdictions require that you have lived in that place for a certain number of days before filing (that's the case where I filed anyway).
posted by motsque at 1:05 PM on September 16

I returned to the U.S. when my marriage collapsed, but had I not done so I would not have had an actual legal presence in the state I left when I moved to B.C. I had to re-establish residency back here before I could file for divorce here.

If that's not clear, I suspect that as you're actually resident in B.C. at the moment, it's only B.C. that has jurisdiction and not Nevada. But absolutely talk to a lawyer for that sort of thing.

As for which venue to choose if you can, in my case, the process is easier and cheaper in my state, and there's only a six month separation if there are no children involved. So I'm the one that has to actually take the steps needed to end the marriage that meant more than breathing to me. One last piece of cruel irony plopped down on top of everything else, like some monstrous cherry. Obviously I know nothing of your situation, but have you considered just not doing it?
posted by Naberius at 1:30 PM on September 16

The residency period for a Nevada divorce is 6 weeks. The divorce itself is then granted within a couple of weeks, if the paperwork is all in order. People have been going to Nevada for quickie divorces for decades (see The Women, 1938) and there's a reason. Also, "Property you inherit from your family during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not commingle it with marital property during the marriage".

IANYL and IANANL(Not a Nevada Lawyer). You'd definitely want to consult one before taking any actions. And as atrazine says, you should get your own lawyer, not one for the both of you.
posted by katemonster at 1:43 PM on September 16