[Sponsored article] U.S. citizens residing in France may quickly feel like Emily in Paris: absolutely lost in translation.
French communication tools are different —not only because of language barrier — but also because their expectations and cultural background are different. It is therefore not suprising to say that the French and American legal systems differ.
How does that look in matrimonial and family matters, you may ask?
Whether you are married in France, in the United States, or elsewhere, does not matter that much. If the marriage is valid in the place where it was entered, it is usually recognized everywhere. That being said, a marriage which is contrary to public order may not be. This includes traditional cases of bigamy. Additionally, the COVID pandemic has raised new issues, with fiancés getting married on zoom in the U.S. The question arises of the recognition of such a marriage in France. French law prohibits online marriages when one of the spouses is a French citizen. However, French courts may recognize a “zoom marriage” between two U.S. citizens.
Besides those specific issues, the main question is: how do the spouses own the assets they acquire during the marriage, and how do they split them in the event of a divorce or death?
Generally, the rule is that the law that applies to your assets will be determined by the court dealing with your divorce or estate. If you get divorced in New York, New York will apply New York law and split the marital assets equitably between the spouses. If your divorce takes place in France, France will apply its international laws and will apply the law of the first common residence of the spouses.
In order to avoid issues and uncertainties, the best option is to subscribe to a nuptial agreement or contrat de mariage. If French “contrat de mariage” can only be signed before the celebration, other agreements are sometimes possible during the marriage. In those contracts, the spouses will determine which law should apply to their assets and how those should be owned and split in the event of death or divorce.
Beware of the tricky question of the validity and enforcement of such deeds in foreign jurisdictions. Especially considering U.S. requirements of fairness and transparency, with independent counsel and disclosure of assets, which do not exist under French law.
Besides your assets, you may have children and wonder what is going to happen to them. If you are a U.S. citizen living in France, you may want, upon your divorce, to relocate to your home state. Although this is a very common wish among divorcing parents, it is often not easy to satisfy, unless both parents agree to this move.
Judges are indeed reluctant to let one parent relocate, since that would significantly impact the relationship of the left behind parent with his/her children. By doing so without permission from the judge or the other parent, you risk an international abduction case, under the Hague Convention, where the judges will most likely order the return of the children to their habitual residence for the local judge to rule on custody. Besides the financial and emotional aspects of such cases, the sanctions of the custody judge could be to give custody to the left-behind parent.
Custody battles are long, uncertain and often open the door to a lot of acrimony between the parents. Unless the other parent is unqualified or dangerous to the children, or in the event of domestic abuse in the family, entering into constructive dialogue with the other parent through counsel or through a mediation process can be the most efficient avenues to reach a settled decision.
Finally, you may have a peaceful and happy life in France and die there with assets both in the U.S. and in France. What will happen to them? Which law will apply?
In such cases, unless you draft a Will in which you elect U.S. law as the law of your nationality; the law that will apply to the transfer of your worldwide assets, including your assets located in the U.S, will be French law, as the law of your last residence upon death. As a consequence, your children will be entitled to a specific share of your assets, called the “réserve héréditaire”, which could range from 50% of the assets if you have one child only, up to 75% of the assets if you have 3 children or more. If an asset consists in a real estate located in the U.S., then U.S. courts are likely to apply U.S. law instead of French law. For instance, by recognizing the elective share protecting the rights of the surviving spouse against the French “réserve héréditaire”. There are indeed possibilities to elect the applicable law and decide to distribute your assets in a specific way by establishing one or several wills, depending on the localisation of your assets and your testamentary wishes.
International lawyers will help you navigate these complex issues. Hélène Carvallo and Anne-Carole Plaçais are two lawyers specialized in International Family and Heritage Law, in Paris and New York. Feel free to contact them if you have any questions:
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