If you got divorced overseas, New York may or may not recognize the divorce. Here's what determines whether your foreign divorce decree holds up in New York court.
Divorce laws vary from country to country, and even within a country, they can differ by region, state, or province, shaped further by local customs, culture, and religion. With this complete lack of uniformity, should U.S. 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. 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 U.S. 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 based on “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 that 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 they 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.
(Greschler v. Greschler, 51 N.Y.2d 368, 376 (1980); Farag v. Farag, 772 N.Y.S.2d 368 (N.Y. App. Div. 2004); Rosenstiel v. Rosenstiel, 16 N.Y.2d 64 (1965).)
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 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 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 they remarried in reliance on the foreign divorce decree.
(Rosenstiel v. Rosenstiel, 16 N.Y.2d 64 (1965); Farag v. Farag, 772 N.Y.S.2d 368 (N.Y. App. Div. 2004).)
What Happens After a Court Recognizes My Foreign Divorce?
Once a New York court recognizes your foreign divorce, you're treated as legally divorced for purposes of New York law. That marriage is considered terminated as of the date of the foreign decree, and you're free to remarry.
Keep in mind that this recognition of your marital status is a separate legal question from whether a court will enforce any financial terms in that decree, such as alimony (spousal support) or division of property. If your foreign divorce includes financial terms you want enforced in New York, talk to a family law attorney about what additional steps may be required.
If a New York court instead finds your foreign divorce invalid, you're still considered married under New York law, and you won't be able to seek financial relief, such as equitable distribution of marital property, based on the foreign decree.
(N.Y. Dom. Rel. Law § 236; Rosenstiel v. Rosenstiel, 16 N.Y.2d 64 (1965); Greschler v. Greschler, 51 N.Y.2d 368, 376 (1980).)
