I filed for divorce in the US and my Korean wife filed in Korea two weeks later — which court decides, and can both cases really run at once?

Both cases can proceed at once, both lawyers are overstating, and the one who is more wrong is the one telling you Korea is not your problem. Korean courts do not give priority to a Korean spouse; they apply a jurisdiction test on facts, and where a foreign case on the same marriage was filed first, Korean law lets the court take that into account — but only if someone puts it in front of the judge. On your daughter, the Korean court is very unlikely to decide custody of a child habitually resident in the US, and you should make sure it knows she is. The Korean case needs a defense, not a shrug.

Can Korea hear it, and under which law

A Korean court has international jurisdiction under Article 56 of the Act on Private International Law (국제사법, gukje sabeop) where a spouse is a Korean national habitually resident in Korea — which she now is, or will argue she is after a year with her mother. Korean law applies under Article 66 on the same basis. So the Seoul court can take her petition. "Priority because she is Korean" is not the rule; "jurisdiction because she is a Korean national living here" is, and it is a different thing, because it is a jurisdiction the court has, not one it must exercise.

Two cases at once

The Act on Private International Law addresses this directly. Article 11 provides that where the same case is pending before a foreign court that was seized first, a Korean court may stay its proceedings if the foreign judgment is expected to be recognizable in Korea, and Article 12 allows a Korean court to decline jurisdiction in exceptional circumstances where a foreign court is clearly more appropriate. Your US case was filed first, on a marriage whose last three years of common life were in the US, with the child in the US and property in both countries. That is the argument for a stay or a declination, and it is made in your answer to her petition — it is not applied automatically, and a respondent who does not appear does not get it.

If neither court stays and both proceed, the first final judgment is the one that matters: a US divorce judgment, once final, would be recognized in Korea under Article 217 of the Civil Procedure Act if she was properly served and the US court had jurisdiction by Korean standards — and would end the Korean case as moot, since there would be no marriage left to dissolve. A Korean judgment first would face the mirror-image question in your state. Racing is possible but wasteful; the stay application is the sensible move.

Children, property and support

Custody of a child habitually resident in the US is, under the Hague Child Abduction Convention framework that both countries implement, a matter for the courts of the child's habitual residence. A Korean court hearing a divorce petition can be asked to decide custody, but where the child has lived in the US for three years with one parent, it will ordinarily recognize that the US court is the appropriate forum for custody — provided the facts are before it. If her petition asks for custody and you do not answer, the risk is not that a Korean order takes your daughter, but that a default order exists and becomes a document she uses.

Property in Korea may be divided by the Korean court; property in the US by the US court. Where a stay is granted, the US court's division of both is what Korea later recognizes. Where both proceed, coordinate so that assets are not divided twice or missed.

What to do on the Korean side

Appear. A power of attorney (위임장, wiimjang), notarized and apostilled in the US, appoints Korean counsel who files an answer within the period the court sets for a respondent abroad, contests the desertion allegation with evidence that she left, raises the pending US proceeding under Article 11, and states the child's habitual residence with school and medical records. Attend nothing in person unless the court orders it. Keep your US lawyer and your Korean lawyer talking; the dates of filing, service and any US orders are what the Korean court needs to see.

Practical insight

Parallel-proceeding cases are lost by the spouse who believed his home lawyer's "not our problem." The Korean court decides what it is told, and a spouse who does not appear tells it nothing. They are won by putting the first-filed case, the child's residence and the equities in front of the Korean judge early, at which point the Seoul case usually pauses and the US case decides. The cost of doing that is one answer and one application; the cost of not doing it is a second, inconsistent judgment.

Send us her petition and your US filing date, and we can prepare the Article 11 application with the answer — by text consultation or at +82-2-522-3959.

— MEGA X Law Firm Korea, International Family Law Team