Q) I am a US citizen with a Korean spouse. We married in Seoul and then went to America where we have been since. I have been a NJ resident. Korean spouse abandoned me in 2018 and went to live with her friend in Maryland. Korean spouse states that she wants a divorce and insists she is entitled to all of my monies in Korea. My options are to file for divorce in New Jersey or Maryland. I also want to see what Korean court can do. Ideally I would want to get the F-6-1 visa in Korea as well as ensure my stake in the Korean property.
A) Here you have two main issues correlated with an international divorce: an international jurisdiction and a governing law.
If your wife has any registered address in Korea, the jurisdiction would not become an issue. However, as I understand she is residing in Maryland, it would be become an issue whether a Korean court could exercise a jurisdiction over two persons who are now living in Korea.
In this regard, the Private International Act(“PIA”) provides that the Korean court shall have the international jurisdiction when a party or a case in dispute is substantially related to South Korea. This means the residence is not the sole factor in deciding the jurisdiction.
For example, in a divorce lawsuit between Korean couple who were living abroad, the Korean court accepted the case on the ground that a divorce of Korean national is a matter of sovereignty. In other case where a U.S. citizen living in the U.S. filed a divorce lawsuit at the Korean court against a Korean living in Korea, the court found the jurisdiction is acknowledged, holding that, by filing a lawsuit with a Korean court, the U.S. citizen had turned himself into the jurisdiction of Korea, therefore there would be no unfairness in hearing the case at Korean court.
I haven’t found any exact case matching your situation, however, considering those precedents, you can argue that the Korean court would hear your case on the ground that (i) your wife is a Korean, (ii) it is you, a foreigner, who file the lawsuit at the Korean court by giving up your defense of lack of foreign court’s jurisdiction, and (iii) you both don’t reside in the same state in the U.S. I actually represented an Irish client who filed for divorce at the Korean court against her Korean wife living in Ireland. In that case, the court didn’t question the jurisdiction, as the wife answered the lawsuit without asserting a jurisdiction issue.
When the Korean court hears your case, the court will decide which law shall govern your divorce claim. According to PIA, the law of most related state shall apply, when (i) the couple have different nationality, (ii) they don’t have the common habitual residence, and (iii) neither party has a habitual residence in Korea. So the chances are either Korean law or NJ law becomes the governing law.
When the Korean law applies, all marital assets acquired or maintained during the marriage shall be divided according to the contributory share. It is usually 50:50. But it could be modified according to various facts.
Lastly, when you get a divorce decree which provides that your Korean wife is solely responsible, you can extend F6 visa even after the divorce. Actually this is the reason why foreign spouses file for divorce rather than entering into an amicable divorce. The Korean immigration office requires a divorce decree which states a Korean spouse is liable for the divorce, by which F6 visa can be renewed.
You can find more articles and case law on Korean divorce law here.
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