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.
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.
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:
If these requirements are not met, New York courts will not issue a decree validating the foreign divorce.
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.
Not always. You can't challenge an overseas divorce if:
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.
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.