Overseas Divorces: Validity of Foreign Country Divorces under New York Law
In the United States, a divorce decree or divorce judgment issued by a foreign country generally is recognized in a state on the basis of comity, provided that the parties have fulfilled the requirements imposed by the laws of both countries.
Residency or domicile determines the validity of a foreign country divorce.
For a foreign divorce to be valid in New York, the country granting the divorce must have proper jurisdiction based on either parties’ residence (or domicile). Many countries allow their oversea citizens to obtain a divorce, in court or at a government registry, without either party’s physical presence in the country. Such a divorce undertaken in a foreign country where neither of the parties to the marriage lives at the time of the divorce is often referred as a “mail order” divorce by the United States authorities.
For many, obtaining a divorce from their home country is appealing and natural because the parties are more familiar with the judicial system and legal culture in their home country, and in most cases the legal cost is significantly lower as well. However, a divorce obtained in a foreign country will not normally be recognized as valid if neither of the spouses was residing in that country at the time of the divorce, regardless of the foreign country’s laws or the parties consented to the divorce.
For instance, Australia allows one party to apply for a divorce in Australia if either spouse is an Australian citizen by birth, descent or by naturalization, and such divorce application can be granted even if both parties live outside of Australia. An Australian divorce granted in such circumstances is problematic and may not be valid under New York law because under New York law Australia might lack the jurisdiction to grant the divorce if neither party resides in Australia, and consequently the Australian divorce could be void.
The notice of the foreign divorce action must be served properly.
To ensure the validity of a foreign country divorce, the notice of the divorce action must be served in compliance with both countries’ laws. In one of the landmark cases reported by the New York Law Journal, the court ruled, in my client’s favor, that a foreign country divorce judgment is unenforceable because the foreign country court failed to comply with New York law when serving the divorce paper in New York although that foreign court complied with its own country’s law.
Notifying a party of a legal action called “service of process” is governed by complex international treaties and domestic laws. These laws not only apply to complex commercial litigations among multinational corporations but also apply to family law proceedings, including a seemingly simple uncontested divorce action.
New York courts will not recognize or enforce a divorce judgment if the judgment is obtained by fraud, coercion or duress.
No recognition of a foreign judgment will be afforded if repugnant to New York public policy.
Obviously, the validity of a foreign divorce greatly affects a person’s future family life. In order to avoid future attack to the validity of a foreign divorce, both New York law and foreign law factors should be carefully examined and considered.
How I can Help:
1. Obtain a declaratory judgment to recognize a foreign divorce judgment.
2. Defend or challenge a foreign divorce judgment or divorce decree. The validity of a foreign divorce judgment is often brought up by a former spouse or by a third-party, such as the United States’ immigration authority (the USCIS) or, people that have substantial interest in either spouse’s estate. In such cases, complex questions must be answered to determine the validity of a foreign divorce judgment based on both procedural and substantive laws.
3. Assess the Validity of a Foreign Divorce. I provide advice as to the validity of a foreign divorce and can help you make important decisions such as:
Where to file for a divorce, in New York or in another state or abroad: For example, a mail ordered divorce from a foreign country, such as your home country, may be quick and cheap but it might not be recognized in New York under some circumstances.
What actions need to be taken before getting married in New York. For example, you may need to be sure that your and/or your fiancé’s former marriage has been illegally terminated before remarrying.
What remedies to seek to protect or enforce your financial and properties rights.For example, if a foreign divorce is not enforceable or valid under New York law, one may be able to seek support and distribution of marital assets in New York despite the foreign divorce judgment or divorce decree.