Validity of Foreign Divorces under New York Law

If you're a New York resident and you divorced overseas, are you legally divorced?

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Overview

Divorce laws are different in every country and they may vary depending on regional, state or provincial laws, and even further on local customs, cultures and religion. With this complete lack of uniformity, should US courts recognize foreign divorces? What happens when a New York resident gets divorced in a foreign country? Will New York law recognize the overseas divorce judgment? This article touches on some of the issues that may come up when New York courts are asked to determine the validity of a foreign divorce.

What is a foreign divorce decree?

Many countries offer their overseas citizens the opportunity to utilize their home country’s judicial system, including obtaining a divorce without either spouse’s physical presence in the country. Let’s say, for example, that Henry and Sarah were both born and married in a foreign country – call it Country A – and they have been living and working in New York. Let’s say that Henry wants a divorce, and Country A allows Henry to file for and obtain a divorce from Sarah by submitting paperwork through the mail.

A divorce, such as Henry and Sarah’s, that is undertaken in a foreign country, where neither spouse lives at the time of the divorce, is often referred to as a “mail order” divorce by U.S. state courts and the United States immigration authorities. For many who are originally from a foreign country, a mail order divorce is appealing because of the familiarity with the judicial system and culture in their home country, and in most cases, the legal cost is significantly lower as well.

Will New York recognize foreign divorce decrees?

It depends. Generally, divorce decrees issued in foreign countries are recognized in New York on the basis of “comity” (civility and courtesy), but there are some requirements that must be met, such as adequate notice of the divorce. And New York will not validate a foreign divorce if it contravenes New York public policy, as is the case, for example, with a so called “mail order” divorce that does not require an appearance by either party.

New York, unlike many other states in the United States, will recognize a divorce decree issued in a foreign country, which is not the domicile of either spouse, provided the following requirements are met:

  • both spouses must receive adequate notice
  • there must be some physical presence on the part of at least one spouse within the jurisdiction (authority) of the court rendering the divorce  - this is usually met when the requesting spouse is in the foreign country to deal with the divorce proceedings, and
  • there must be some type of personal appearance or submission to the foreign court’s authority by the responding spouse (the spouse that is not seeking the divorce) - this is typically met by the responding spouse either appearing in person in the foreign court, or signing something showing that he or she agreed to allow the foreign court to make divorce-related decisions and terminate the marriage, such as a written response to the divorce.

If these requirements are not met, New York courts will not issue a decree validating the foreign divorce.

What proof will I need to validate my foreign divorce in New York?

You’ll need to obtain a certified copy of the foreign divorce decree from the court in the foreign country where it was issued. You should have the document authenticated for use in the United States, and make sure to get a certified English translation of the divorce decree made so the court can read it.

Can I fight against a foreign divorce decree in New York?

Not always. You can’t challenge an overseas divorce if:

  • you personally appeared in the foreign court and filed an answer
  • you voluntarily appeared in the foreign divorce proceeding and raised the issue of jurisdiction  (but you might be able to overturn the divorce if your appearance was unauthorized, fraudulent, or coerced)
  • you have benefited from, or taken advantage of, the benefits of the foreign decree, such as by remarrying in reliance on the overseas divorce
  • your “ex-spouse” got remarried in reliance on the foreign judgment, or
  • you’ve complied with (followed) the terms of a separation or divorce agreement that was incorporated into the foreign decree.

However, if your spouse obtained a “mail-order” or ex parte decree, (meaning without notice to you or without your appearance) you can still challenge the validity of the overseas divorce in a New York matrimonial action, even if your ex-spouse relied on its validity to his or her prejudice, such as where he or she remarried in reliance on the foreign divorce decree.

What happens after a court recognizes my foreign divorce?

Once a foreign divorce judgment is recognized by a New York court, it can serve as the basis for an action seeking financial relief, including the equitable distribution of marital property. The spouses to an invalid foreign divorce decree will not be able to seek post-judgment financial relief.

Obviously, the validity of a foreign divorce affects a person’s future family life. In order to avoid attacks on the validity of a foreign divorce, aspects of both New York and foreign law should be considered.  If you have questions, you should contact an experienced family law attorney in your area.

Resources

For more information, click here for the section of the US Department of State Website that deals with foreign divorce.

by: , Attorney

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