If you make a deal with your husband or wife to go overseas for a trial period and return if it doesn’t work out, get it in writing. Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may not work. A foreign court handling your child custody case may decide that your deal with the other parent doesn’t matter; it instead must only consider what’s best for the kids now. Once your kids are at home in the new place, your shared plan may not count for much.

Before you switch residences, consider how it might impact a possible divorce. An example: Arnie and Alice signed a prenuptial agreement in America before they got married. Arnie made sure that it was “watertight,” not only by having it drafted by his own lawyer but also by insisting that Alice have her own independent lawyer. Arnie thought the terms in the agreement were pretty fair to Alice, and felt secure. Then the couple moved to London, England, and were oblivious of the fact that their prenup may be unenforceable in an English divorce court. Although English courts no longer hold that prenuptial agreements are against public policy, they scrutinize prenuptial agreements carefully for fairness – and what’s fair to one person might be unfair to another. To make matters much worse for Arnie (who had bags of money before the marriage and thought he was fully protected by the prenup), the distinction in England between marital property and separate property acquired before the marriage is not as strong as it is in the United States. By moving the family to England, he risks blowing a big chunk of his pre-marriage assets.

Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So if you are a “trailing spouse,” consider the following:

• Don’t sell the house. If you maintain an address in the States, it will be easier to claim that you maintained your home as your permanent residence. It will certainly indicate that it continues to be your “domicile” (the place you live in indefinitely which remains as your domicile even if you move temporarily to another place remains your home).
• Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.
• Keep your network of friends and family at home.
• But none of this is likely to work if your kids become settled in the new location (see above).

If you’re overseas and “planning” to get divorced, be as strategic as possible. Plan your moves. Consult someone who really understands the big picture. Figure out where it’s best for you to tell your soon-to-be-ex that it’s over. You may need to move yourself, the kids, the soon-to-be-ex, and the marital assets to another place before you break the news that you want out of the marriage. Even then, an undisclosed decision to leave the marriage as soon as you have relocated might hurt you. And don’t leave without the evidence. It’s very frustrating when a client tells me a story of the other spouse’s gruesome physical abuse and shameless hiding of marital assets and when I ask for the evidence, such as police reports, video clips, texts, doctor bills, I’m often told that it was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.

If you’re feeling stuck overseas and have children with you, don’t just bolt for the (airplane) door with the kids and run ‘back home’ to the States. Plan things out first. If you take the kids without the other parent’s consent, you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you may well be forced to return by an American court – and then, to add insult to injury, you may have to pay your spouse’s legal fees and travel expenses in addition to your own. When you return, your case will be heard in the foreign court, where you could be branded as an international child abductor.

Consent to take the child for a vacation is not consent to relocate with the child. If you overstay the agreed time period you will have abducted your child. Consult knowledgeable international family law counsel sooner, rather than later.

On the other hand, if it’s your spouse who’s feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing. Some are pretty obvious: be kind; be understanding; and don’t stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide your own and your children’s passports. Befriend the other party’s travel agent, who may tell you about undisclosed airline reservations. Consult their friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that the kids are missing.

If you’re overseas and pregnant, and you are not 1000% confident that you’ll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden, Saudi Arabia or somewhere else, the child’s “habitual residence,” according to the Hague Convention, will be Sweden or Saudi Arabia or somewhere else. This can create terrible problems if you ever want to take your baby “back home.”

Don’t assume that the local authorities won’t help. So many times, expats feel that the local social welfare agencies will not understand the situation and will automatically side with the other spouse who is a citizen. In fact, in many countries the support services and police are excellent and worthy of contacting. Plus, an American court in a Hague Convention case may not accept your defense that returning a child to a foreign country will put the child in grave risk of harm unless you can show that the foreign support services are unable to provide the needed protection.

Local divorce lawyers may not be your best bet. They have an incentive to encourage you to bring your lawsuit in the place where they practice and usually do not have expertise in foreign laws. An international divorce lawyer, who consults with local lawyers as appropriate, can give you objective “big-picture” advice.

If you fear that the other parent will take the children overseas and not return them, there are many things that you can do to prevent that from happening before it’s too late. You need advice from international family law counsel. And you may need expert evidence to tell the U.S. courts whether or not the courts and authorities in the foreign country can be counted on to expeditiously return the children.

Don’t assume that your prenup will work overseas, or that your foreign prenup or “tick the box” marriage contract is enforceable in a U.S. court. Again, get advice from a knowledgeable international family lawyer first. And please understand that there is no such thing as an “international prenuptial agreement.” Prenups are prepared under the laws of one state or country. They may or may not be enforceable in other states or countries.