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International Divorce: China

Divorce rates are rapidly rising in China. According to China’s Ministry of Civil Affairs there were 3.5 million more divorces in 2014 than in the previous year, constituting an increase of 13.5 percent. Divorces are complex legal affairs and international divorces are especially complex. If you were married in China and are now living in Massachusetts, it is important to know your rights in the event of a divorce.

Judgment of Divorce. A judgment of divorce granted under Massachusetts’s law can be recognized as valid in China. To have a Massachusetts’s judgment of divorce recognized in China, a person must apply for recognition of the judgment in the Intermediate Level People’s Court serving their jurisdiction. China R. Civ. Pro. Art. 267. The People’s Court will undertake a review of the Massachusetts’s judgment of divorce. If the People’s Court finds that the divorce judgment is not in violation of Chinese law or the Chinese public interest, then the Massachusetts’s judgment of divorce will be recognized and enforced in China. China R. Civ. Pro. Art. 268.

Child Custody and Child Support. The Massachusetts’s Probate and Family Court must have jurisdiction to decide issues of child custody. To make this determination, a Massachusetts’s Probate and Family Court judge will apply the Uniform Child Custody Jurisdiction Act located in Chapter 209B of the Massachusetts General Laws. If the Court finds that the child’s primary residence is Massachusetts, then it will decide issues of child custody and child support. On the other hand, if the Court finds that the child’s primary residence is not Massachusetts, then the jurisdiction of the child’s primary residence will rule on issues of child custody and child support.

Division of Marital Assets. Proceedings to divide marital assets will be bifurcated. Marital property located in Massachusetts will be divided by Massachusetts’s courts in accordance with Massachusetts General Laws, Chapter 208, Section 34, or by agreement of the parties. Whereas, marital property located in China will be divided in accordance with Marriage Law of People’s Republic of China, Art. 39, or by agreement of the parties.

In sum, the complexity of international divorce cannot be overstated. The case of Shao v. Ma, 68 Mass. App. Ct. 308 (2007) illustrates this point. In Shao v. Ma, a trial judge incorrectly applied Massachusetts’s version of the Uniform Child Custody Jurisdiction Act, as well as the Massachusetts’s common law regarding marital asset division in a divorce between two Chinese citizens who married in China but were living in Massachusetts. The Appeals Court vacated the trial judge’s decision that the Massachusetts’ Probate and Family Court did not have jurisdiction to decide issues of child custody and division of marital assets.