The intense media coverage of high-profile celebrity divorces, like that of Tom Cruise and Katie Holmes, can quickly result in a degree of “reader fatigue.” But one fundamental aspect of what was one of the quickest divorce settlements in history is the developing concept of forum shopping in divorce cases.
Holmes made the unexpected decision, apparently catching Tom totally unaware, to file in New York as opposed to California, where the couple had been residing and brought up their daughter, Suri. However, with custody as opposed to maintenance being the key consideration for Holmes, New York’s historical reluctance to grant joint custody where the parents are at war with each other appeared to be a determining factor in the decision to file there.
While choice of jurisdiction has always been a factor in high-profile international family disputes, the publicity surrounding Holmes’ actions is likely to lead to more wealthy couples standing back and deciding which jurisdiction they are entitled to litigate in. If there is a choice for them,they can assess which court is likely to give them what they want, or at least put them in a stronger negotiating position with their spouse.
Jurisdictional options are of course not only limited to individual U.S. states; the U.K. courts are now coming into play for this often high-profile international litigation. In the Internet age, and with many couples living abroad, each spouse might be entitled to claim “habitual residence” in alternative jurisdictions.
This criteria appears to be relatively straight-forward on first reading, but the reality is that “habitual residence” is often subject to a high degree of evidential debate, particularly were one party may have claimed residence in one country for tax purposes or the family is moving around the world with their business, staying 12 months here and 12 months there. Sometimes the wife will accompany the husband and on other occasions she will remain at home with the children of the family, thereby creating further potential jurisdictional choice.
Accordingly, establishing jurisdiction is likely to be the frontline of battle in many international family cases, but with the rewards of success often bringing significant financial and other tactical benefits for one of the parties to the marriage, it is becoming one of the most significant issues for a spouse to establish, whether by subterfuge or otherwise.
For instance, California has traditionally been regarded as a favorable jurisdiction for an unmarried partner, but the U.K. would often be regarded more favorable to a wife, where the courts will consider granting lifetime financial support, or at least until the age of sixty-five. France and Spain require the parties to enter into a written agreement before taking their marriage vows, which is intended to make provision for, and to separate, the pre-marital assets.
The New York Courts have a public policy of recognizing prenuptial agreements, although, with Holmes being a woman of independent financial means, this would not have been such a decisive factor as it would have been for a less independently wealthy spouse.
We are therefore likely to see a dramatic increase in “divorce tourism” during the coming years, and an accompanying need for international mediation services, and of course a new breed of multi-jurisdictional divorce lawyers.