Transatlantic divorce: insights from Scotland and New York

The ties between Scotland and the United States have always run deeper than shared heritage alone with some quite literally set in stone. In the late 1800s, sandstone quarried in Dumfriesshire made its way across the Atlantic to form part of the Statue of Liberty’s pedestal, anchoring New York to Scotland in a very real sense.

At Brodies, we have our own modern transatlantic link: Hannah Fergusson, associate at Rottenstreich Farley Bronstein Fisher Potter Hodas LLP began her legal career with us as a trainee and solicitor in our family law team before crossing the ocean herself and passing the New York Bar.

For family law clients and their family lawyers, navigating legal systems within larger multi-jurisdiction nations can be complex. In this article, Hannah and her former colleague, Victoria Varty compare the approaches of divorce lawyers on either side of the pond.

Jurisdiction

Both the UK and the US operate as multi‑jurisdiction systems, meaning divorce law is not uniform across either country. In the UK, Scotland, England & Wales, and Northern Ireland each apply their own rules, courts, and approaches to financial division. Likewise, in the US, every state functions as a separate legal jurisdiction with its own divorce laws and asset‑division frameworks. As a result, outcomes can vary significantly depending on where proceedings are raised—illustrated by the contrast between states like Florida, New York, New Jersey and Connecticut.

Establishing which court has jurisdiction is fundamental, and Scotland and New York apply residence‑based tests that reflect broader patterns across the UK and US.

In New York, consistent with the wider US system, jurisdiction can arise from various combinations of marriage location and one or two‑year residency, with each state able to set its own rules.

Scotland, like the rest of the UK, uses its own criteria, centred on domicile or a full year of habitual residence, with additional requirements depending on whether a case proceeds in the Sheriff Court or the Court of Session.

Because more than one jurisdiction may have authority, the choice of where to raise proceedings becomes strategic. In all systems, parties must evidence meaningful ties to the jurisdiction, through documents such as employment records, financial statements or property deeds, to support the court’s jurisdiction.

The court system

Scottish and New York divorce courts take notably different approaches, reflecting wider contrasts across the UK and US.

In Scotland—as in the rest of the UK—court advocacy is often split between solicitors and specialist Advocates or barristers, while New York follows the broader US model where an attorney handles both case preparation and courtroom advocacy. In the US, there is no such separation of roles.

Evidence‑gathering also diverges: Scotland uses a narrow, court‑controlled system similar to England and Wales, whereas New York aligns with the wider US tradition of broad discovery, allowing extensive document retrieval from spouses and third parties.

When it comes to witnesses, the UK generally reserves oral evidence for the final hearing, supported by written statements, while the US favours early, detailed depositions taken under oath before trial.

Alternative dispute resolution

In New York, as in Scotland, there is a movement away from having divorces reach a resolution in the court system. In New York, private arbitrations are becoming increasingly common, particularly for high net worth and high-profile individuals. Parties appoint an “arbitrator”, typically a retired judge or a highly experienced lawyer, to adjudicate on the divorce outside the public court system. Decisions made by an arbitrator can then be affirmed by a judge within the court system.

In Scotland, many divorces are resolved by mediation, collaborative practice or arbitration, as opposed to being determined in a court. These processes are generally more cost-effective, quicker and less stressful than having a final determination made by a judge.

As this transatlantic comparison shows, Scotland and New York may approach divorce differently, but one universal truth binds their legal worlds: lawyers on both sides of the pond will always insist you seek specialist advice early. While Lady Liberty’s torch may shine bright over New York and the Aurora Borealis may dance across Scottish skies, neither will help you navigate a legal storm. In a landscape defined by complexity, early expert guidance is the most reliable beacon you can follow.