Category: General Practice

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Q) I’m an American and my wife is Korean. She is living in Korea and I have returned to the USA. We have agreed to divorce. However, I can’t go back to Korea just to sign the papers. Is it possible to have her do it? Or have her email me the divorce agreement for me to sign and return to her? I just want to know how to divorce when the spouse doesn’t live in Korea.

Spouses Can Live in Different Country to File for Divorce in Korea

In general, the Korean court requires at least one spouse to reside in Korea in order to process the divorce filing. Thus, the fact that one spouse resides in a foreign country doesn’t bar a spouse living in Korea to file for divorce. The issue, however, lies in a procedural matter.

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(Case)

I am a U.S. citizen.  I currently have a very complicated inheritance case in South Korea.  My father passed away 10 years ago in the U.S. and his two Korean half brothers in Korea are currently suing my family for my father’s portion as well as my father’s sister’s portion as she passed away many years ago.  They are claiming they want 60% of my father’s portion and all of my aunt.  There is no will left by my grandfather.  They are claiming that they took care of the grandfather who was a Korean citizen.  However, when my father was alive he also sent money regularly to his father and his half brothers but as it was more than 10 years ago I am uncertain how to proceed.

Governing Law Issue

Inheritance gets more complicated when it has some sort of multinational issues.  Here the Korean heirs sued the U.S. heirs at the Korean court.  The deceased was a Korean national and it is probable that the majority of the estate is located in Korea.  That might be one of the reasons why this case should be litigated in Korea, not the U.S.

In an international inheritance case, we first need to find out which country’s law shall apply.  As this case was filed with the Korean court, the Korean court decides this issue pursuant to their own choice of law doctrines.  According to the Korean choice of law, the law of the deceased’s country shall become the governing law.  That means, in our case, the Korean Inheritance law shall apply. (Please refer to this article regarding the basic of Korean Inheritance law)

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Q) I was born in Korea but married a US citizen, moved to the US and am now a US citizen.I learned that my father has passed away in Korea and am looking for some assistance on accepting or renouncing the inheritance.  I was the forth child. After I was born, my parents divorced and the first two children went with my father and the third child and I went with my mother. My father remarried and had three other children. My mother and the second wife are still alive.  I was told that the estate includes property (house) and some savings.  The second wife wants to live in the house until she dies and it sounds like my other siblings agreed.  My half brother with whom I’ve had no previous contact called and said they need my cooperation to proceed.  He asked me to sign some Korean document which I don’t understand. I’m trying to decide whether to accept or renounce the inheritance and how to accomplish either of those in the easiest way possible.

A) Under Korean inheritance law, currently you are the co-owner of the total estate without any registration or report.  Other heirs cannot distribute, dispose of the estate without your consent.

The heirs in Korea might be in a hurry to pay the inheritance tax which might be one of the reasons why he contacted you.  But, you should not give them the power of attorney or any authorization/consent until you have the information you need which includes your deceased parent’s name, Korean residence registration number and the detail of the estate.  If he refuses to provide that, I think that is a red flag.  At least he should let you know the Korean resident registration number, which is (more…)

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Q) This past weekend I was involved in some altercation with a Korean guy at the local bar.  I pushed him slightly, but he fell down and broke his wrist.  He phoned a police officer and filed a criminal accusation against me.  I am an E-2 visa holder.  What can I do now to help myself?

A) If you are a first offender and had no other criminal record, I don’t think this case becomes a serious one.  However, as you are a foreigner, any conviction could lead to an exit order and an entry ban decision from the Korean immigration office.  Under the current rule, if a foreigner is fined more than 5,000,000KRW for any crime in Korea, the immigration office can issue an exit order and a future visa application and extension could be denied.  It can also result in an entry ban.  Under the rule, the duration of the entry ban is as follows:

  • the total amount of fine for the last 1 year exceeds 5,000,000KRW: 1 year
  • committed any crime more than 2 times for the last 1 year: 1 year
  • the amount of fine is between (more…)

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The answer is yes, private adoption is legal in South Korea.  There are two types of adoption under the Korean legal system.  One is a private adoption and the other one is a foster care/institutional adoption.  Private adoption is an adoption that is initiated by a private placement from the birth parent without the involvement of any adoption agency.    The most important distinction of private adoption is that it is regulated by the Civil Code and it cannot be executed for a child in foster care or an orphanage.  Any child who is in foster care or an orphanage (“Child Under Social Protection”) should be adopted through the government-approved adoption agency.  This foster care adoption is regulated not by the Civil Code but by the Act on Special Case Concerning Adoption.

Although the two adoptions are regulated by totally different legal systems, many people often confuse these two.  As a foster care adoption must be taken care of by an adoption agency, non-foster care adoption, i.e. a private adoption, (more…)

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When receiving gifts of money or other property, the party should check any tax issues involved.  When the gifts cross the national borders or involve foreign parties, it becomes more complicated.  It could entail an additional filing with a government of a foreign country where the foreign party resides.  Today, we are going to introduce what report and tax liability the parties should take care of and under what condition, when a U.S. resident receives a U.S located house as a gift from his Korean resident parent.

Report to the Bank of Korea

According to Article 7-46 and 7-44 of Foreign Exchange Transaction Regulation(FETR), when a resident of Korea gifts a real property, which is even located abroad, to any non-resident, the Korean resident(devisor) should report the transaction in advance to the Bank of Korea.

The nationality of the parties doesn’t matter here. Only the place of residence does matter.  The Korean Tax authority (National Tax Service) has an internal rule to apply to decide who is a resident and who is not.

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When you divorce under Korean law, there are subsequent legal matters of property division and consolation money.

A property division is a legal right of any spouse who is divorced under Korean law.  Some people think a spouse at fault is not awarded this right, but that is not true.  There was a court case where even a spouse who cheated on the wife can claim for property division.

The subject of division is any and every marital asset acquired and/or maintained during the marriage.  The debts are also divided.

When dividing the marital asset, the Korean court will decide and apply the contributor share of each party in the course of acquiring and maintaining the marital assets regardless of whose name is on it.  The most common ratio is 50:50.  But when the time of marriage is very short and the value of the assets is high, the Korean court has a tendency to limit the wife’s share at a very low level.

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Q) I am seeking a Korean divorce lawyer for my divorce case against my Korean wife.  She lives in Seoul, Korea.  I am American and live in California.  We had a wedding ceremony in California.  We visited South Korea right after the ceremony to file a marriage report with the Korean local government office in Seoul.  However, things didn’t go well.  She left and we started a separation right after the report.  We lived together only for a week.  She had some bipolar issue and that caused lots of stress to our relationship.  I was not 100% sure when filing the marriage report. I am wondering if I can file for an annulment or a divorce in Korea.

A) First of all, assuming your wife has a habitual residence in Korea, the Korean family law shall apply here.

Under Korean law, annulment and revocation of marriage are recognized.  I think, however, annulment and revocation/cancellation of marriage claims are not easy to be established here.

Under Korean law, the annulment requires a lack of genuine intent of marriage.  It seems, however, that you agreed to file the marriage report, which is the strong evidence that you had a genuine intent of marriage.  Of course, this intent is reviewed and decided at the time of the marriage report, not later. (more…)

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1Recently our office represented U.S. parents whose adoption application had been denied by the Korean court.  The adoption was processed as an institutional adoption which is regulated by the Act on Special Cases Concerning the Promotion and Procedure of Adoption.  Institutional adoption, often called an orphanage adoption, is under more strict regulation and qualifications than a private adoption.  In this case, the 1st instance court of Seoul Family Court denied the U.S. parents’ adoption petition due to the concern caused by the adoptive parent’s past medical history of Obsessive-Compulsive Disorder (OCD).

Our office took this case at the appellate court level.  We reviewed the entire record and documents from the beginning and found that the lower court’s finding and the conclusion were not based on the true facts, but on the vague concern.  We even found a critical error in the translation of the ODC evaluation report provided by the Korean adoption agency.

We argued in front of the appellate judges that U.S. medical professionals had stated that the petitioner’s OCD did not harm his suitability as an adoptive parent.   He also pointed out that the U.S. government had (more…)

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Can Korean Police Issue a Summon Even When the Suspect Resides Abroad?

For a starter, there may be a question about whether the Korean police can summon a foreigner who resides abroad.  The answer is yes. The Korean criminal law applies to those who have committed crimes within Korea and then gone abroad, as well as those who have committed crimes against Koreans while staying outside of Korea.  Thus, a foreign resident could be sued and accused by the Korean police, and in such case, the Korean police moves to demand the foreign suspect to attend the investigation in Korea.  Recently, our office sees many cases where a foreign resident employee of a foreign company is called in by the Korean police in relation with its Korean subsidiary’s business.

Do I have to comply with the summon?

Since a foreign country is not within the domain of Korea’s criminal jurisdiction, it is not mandatory for the foreign resident suspect to comply with the summon.  However, if the foreign resident suspect refuses to comply with, the Korean law enforcement authority can get an arrest warranty, which could put the suspect at risk of being arrested upon entering Korea. (more…)