Category: Family Law

Dealing with a marriage, divorce, child custody, adoption, etc.

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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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Private Adoption is Legal in South Korea

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.

Private Adoption and Foster Care Adoption Are Regulated by Totally Different Legal Systems

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 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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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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Divorce could be one of the hardest decisions that people make during their entire life.  If people decide to divorce, one question they might ask their Korean divorce lawyer is how long it will take to get the divorce decree from the Korean Family Court. Fast divorce in Korea is what you might aim for, once you decided to divorce.

The short answer to this question is that it depends, the magic phrase that the lawyers would love to use in almost every dialogue.  The thing is, however, that it really depends on various factors, especially what types of divorce they are going through.  It could be a contested divorce or an uncontested divorce, which requires a totally different approach and care.

If it is an uncontested divorce which means the parties have been able to agree about all the issues involved in a divorce such as custody, child support, visitation, property division, and consolation money, the divorce decree can be obtained within 1 to 2 months.  That is pretty fast compared to other countries.  The parties don’t need to appear at the court so long as a Korean divorce attorney takes care of the case.  That is how our office in Seoul has been handling uncontested divorce cases.

If the divorce is contested, it requires more time for the Korean Family Court to render a divorce decree.  It should go through several hearings and extensive arguments between the parties. (more…)

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Unlike situations in some states in the U.S., a prenuptial agreement is somewhat in a grey area in the Korean legal system.

When the case later goes into a divorce by agreement, the prenup will be fully honored by the court.  It is legal and enforceable in Korea.

When the case, however, goes to a judicial divorce or a contested divorce, the Korean court applies a more strict standard in honoring the validity and application scope of the prenuptial agreement, which in many cases results in nullifying the prenuptial agreement.

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Q) I have a question about whether to renounce inheritance in Korea. My mother passed away a few months ago. There was no will. She was a Korean citizen and her husband too. All two children live in the U.S. and they are U.S. citizens. As we understand I have inherited a 2/7 share of my mother’s condominium and some cash in Korea. My stepfather and his Korean lawyer seem to up to no good. They both have sent conflicting and in my opinion false information to me. Especially his lawyer is threatening me that I would not able to sell my share so I had no choice but to give up or transfer my share. The stepfather asked me to sign POA and a Renunciation of Inheritance but I refused. They even said as I am not a Korean citizen, it would be much better renouncing inheritance for the sake of estate distribution. He said he will compensate me for my renounced share. Can you give me any advice?

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We have received many inquiries regarding the child support obligation and custody/visitation rights under Korean law.  Some cases are related to the divorcing parties and some to the unmarried couples who had babies during the relationship.

Establishment of Paternity under Korean Law

In case of unmarried couples, the birth father has no parental rights and obligations until his paternity is established in Korea.  That can be done in 2 ways.  One is to report himself as the father with the Korean local government.  And the other one is filing a paternity suit.

Determination of Child Care Issues

When the parental relationship is established, the unmarried couple needs to agree on child care issues such as child custody, visitation, and child support.  The same goes for the couple divorcing in South Korea.  When it is hard to reach an agreement, the matters will be heard and decided by the judge per the party’s filing a suit with the Korean family court.

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Question) I am a US citizen and have been living with my Korean boyfriend for about 3 years in South Korea.  We loved each other and agreed to marry, but we were so busy having the legal process timely done, and most importantly we found no need to do that.  We’ve just thought each other as husband and wife and so do our friends and families. While living together, he ran an Internet business and made quite large profits from there.  I took care of every housework and sometimes I helped his business work, too. But, recently I found he had cheated on me. I was so shocked and got separated from him.  My concern is whether I have any right to the assets accumulated during our cohabitation, like a property division right between divorcing couple.

Answer) Under Korean law, in order to establish the marital relationship, the parties must report their marriage to the government.  Just having a wedding ceremony and/or living together as a husband and a wife is not enough for the establishment of legal marriage.

What Is the Common-Law Marriage in Korea?

If the parties live together without the marriage report and consider themselves each other’s spouse, it is called a common-law marriage or a de facto marriage. The Korean law recognizes the common-law marriage.

When can a common-law marriage be legally established under Korean law?  The court’s recognition of common-law marriage is subject to the finding of both (i) mutual intent to form a marital relationship, and (ii) the existence of substance of marital life.  For this purpose, the court looks into various facts such as the duration of cohabitation, the existence of a marriage ceremony, relationship with other family members, etc.

What Rights Do I Have under Common-Law Marriage in Korea?

Common-law marriage is not a legal marriage.  Thus it is not entitled to the same level of legal protection as the legal marriage.  But, when it comes to the dissolution of the common law marriage relationship, Korean law applies almost identical protection to the parties.

Right of Property Division

First, the Korean law grants the right of property division to each party of the common law marriage.  Each party is entitled to some share of the assets acquired during the relationship according to his or her contribution.  Even if a party who is solely responsible for the relationship breakdown can still claim for the division of the property.

RIght of Consolation Money

Second, a party can seek consolation money against the other party, if the other party is solely responsible for the relationship breakdown.  The amount the party can seek is decided by various (more…)