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Recognition of Foreign Country Divorce Judgments
What is the "black letter" law with regard to the enforcement of a foreign judgment of divorce?
A judgment of divorce issued in a foreign country generally is recognized in a state in the United States on the basis of comity (Hilton v. Guyot, 159 U.S. 113, 163-64 (1895), provided both parties to the divorce received adequate notice, i.e., service of process and, generally, provided one of the parties was a domiciliary in the foreign nation at the time of the divorce.
Under the principle of comity, a judgment of divorce obtained in another country under the circumstances described above receives "full faith and credit" in all other states and countries that recognize divorce. Although full faith and credit may be given to an ex parte divorce judgment, New Jersey usually considers the jurisdictional basis upon which the foreign judgment is founded and may withhold full faith and credit if not satisfied regarding the domicile in the foreign country.
What are the different types of foreign divorces?
There are four different types of foreign divorces and they are as follows:
Are foreign judgments of divorce valid in the great state of New Jersey?
People from every country come to New Jersey to pursue their dreams and to escape financial and personal problems. They bring with them the baggage of unsatisfied obligations for support, unsatisfied obligations for support, unresolved child custody disputes, and unpaid property settlements. Many times an ex-spouse and lovers follow the scofflaws here with their foreign courts orders to collect what is owed to them. The challenge for the New Jersey lawyer is to enforce a foreign court order issued under an alien court system with different rules, procedures, and legal standards.
It is also important to emphasize that life in modern America has changed drastically since the 70's. Two facts about modern life have created a vexing problem for the modern family court systems. First, more than 50% of all marriages end in divorce. Consequently, there is a tremendous demand for a fast, painless, and inexpensive divorce of a marriage. Second, Americans can travel quickly and relatively inexpensively to foreign countries by planes, trains and automobiles.
Because of these two facts, many Americans frequently travel to foreign countries to obtain quick divorces. In many cases a spouse will travel to say Mexico, the Dominican Republic or to some other country to obtain a divorce. Quite often, that spouse also will leave most of his or her property, the children, and quite frequently, their spouse in the United States. Thus, regardless of the validity of the foreign country if the divorce judgment is not valid in the United States, then the divorce will have little meaning.
The doctrine of comity is also applied in New Jersey with regard to the recognition of foreign judgments of divorce. For a foreign judgment of divorce to be recognized as a matter of comity, it must not offend the public policy of New Jersey. It is akin to the doctrine of full faith and credit mandated by the United States Constitution to sister state divorce judgments. The doctrine of comity is discretionary rather than mandatory. If a foreign judgment of divorce meets all of the jurisdictional requirements and it is other sufficient on its fact, then it will be presumed to be valid. The procedural for enforcing the recognition of a foreign judgment of divorce is to file a complaint in the New Jersey Family court. A copy of the foreign judgment of divorce also should be attached as an exhibit to the New Jersey complaint.
An on point New Jersey case is Chaudry v. Chaudry, 159 N.J. 566 (App. Div.), certif. denied, 78 N.J. 335 (1978). Here, the New Jersey court applied the doctrine of comity among nations. Therefore, a Pakistani divorce judgment was accorded full recognition. In the Chaudry case, the husband obtained a foreign divorce judgment from his homeland of Pakistan. He obtained the foreign divorce judgment before his wife sued him for separate maintenance in New Jersey. Both parties were citizens of Pakistan. Expert testimony showed that such citizenship constituted a sufficient basis for the divorce judgment in Pakistan.
The Appellate Division found that Pakistan had jurisdiction to enter a divorce judgment that should be recognized here because of the Pakistani citizenship of the parities, the wife's residence there, and the judgment of a Pakistan appellate court that validated the divorce. The court further found that this foreign judgment did not offend the public policy of New Jersey. An antenuptial agreement also was given effect by the recognition of the Pakistan divorce judgment. In summary, the New Jersey court held that Ms. Chaudry was barred from seeking equitable distribution. However, the court did authorize her to apply for child support in New Jersey.
Why is foreign jurisdiction such a critical issue in so many divorce cases?
It seems that New Jersey is more multi-cultural than ever. There are people living in New Jersey who are originally from all corners of the globe. In many cases foreign nationals encounter marital problems once they are living in the Garden State. Quite often a foreign national thoroughly researches the divorce laws of New Jersey and of their home country before they file for divorce. Many times a foreign nation will realize that the divorce laws may be more favorable in their home country. The alimony laws and the laws of equitable distribution can be oppressive here in New Jersey. Many devious foreign nationals choose to file for a divorce in their home country even though they have been living in New Jersey for years.
It can't be overly emphasized that divorce litigants will do anything and everything to avoid paying alimony and to save their assets. I have had divorce clients fly to Pakistan to file for divorce to try to "beat" paying alimony to their former spouse. The jurisdictional issue is a vital one if foreign nationals are living in New Jersey. Quite often the New Jersey divorce laws differ drastically from the divorce laws of other foreign countries. For example, countries differ on the length and the amount of alimony, on the laws of equitable distribution, and on what assets are distributed during a divorce.
The reality of family law practice for foreign nationals is that forum shopping can potentially save a divorcing spouse thousands of dollars in potential alimony savings. Moreover, forum shopping also may enable a foreign national to save their assets from the equitable distribution laws of New Jersey. In many cases the laws regarding the division of marital assets are much more lenient in the foreign national's home country.
What are some of the factors that a New Jersey court will consider when it determines whether to recognize a foreign judgment of divorce?
A New Jersey court will only recognize a foreign judgment of divorce if it is in accordance with the principles of comity among nations. New Jersey is under no constitutional obligation to recognize a foreign judgment of divorce. A New Jersey court will closely scrutinize the facts of a case to determine whether the foreign judgment of divorce violates a person's basic due process rights. In determining whether to recognize a divorce judgment of a foreign nation is valid, a New Jersey court will consider several factors. Each case is decided on an individual basis. It important to emphasize that the issue of recognizing foreign judgments of divorce is not decided on a "cookie cutter" basis. The merits of each case are different. The circumstances of the litigants vary significant in every application. Therefore, each application is extremely fact sensitive.
The most important factor that a court will consider is the domicile of the parties. Generally, if neither spouse was domiciled in the foreign country when the court of the foreign country granted the judgment of divorce, then the judgment of divorce is not entitled to recognition. Basically, if the party who is trying to have the foreign judgment of divorce enforced is not domiciled in the foreign country, then the New Jersey court will not recognize and enforce a foreign judgment of divorce.
Another important factor for a family court to consider when determining whether to recognize a foreign judgment of divorce is the question of notice. The due process clause of the 14th amendment requires that the defendant spouse must be given reasonable notice of any civil action filed against him or her. Thus, if a defendant spouse does not receive adequate notice of the application for the foreign divorce and the hearing, then the court will not recognize the foreign judgment of divorce under the doctrine of comity.
In contrast, if the defendant spouse receives timely notice of the application for divorce and for the hearings, then the court is much more likely to recognize the foreign judgment divorce. The key issue is whether both spouses participated in the divorce proceedings in the foreign country.
Will a foreign judgment of divorce be enforced if it violates New Jersey pubic policy?
Absolutely not! A foreign judgment of divorce will not be recognized in New Jersey if it was obtained under circumstances that offends public policy. If, for example, a judgment of divorce was obtained in a foreign country and it included a custody decision that was not based on the "best interests" standard, then the foreign judgment of divorce should not be recognized.
A very illustrative case is Ali v. Ali, 279 N.J. Super. 154 (Ch. Div. 1994). In the Ali case, the wife was an American citizen while the husband was a Palestinian. For several years, the parties and their child resided in Gaza. Then, the parties separated and the wife moved to New Jersey, while the child remained in Gaza with the husband. Subsequently, the husband and the child moved to the United States where they lived for approximately two years. Then, the child and the husband went back to Gaza. Several days after returning to Gaza, the husband obtained an ex parte divorce and an order of custody. The custody decision was not based upon the best interests of the child. Rather, the court in Gaza awarded the husband custody because, under Islamic law, the father is entitled to custody of a boy when the boy reaches the age of seven.
Subsequently, the wife filed an action for divorce and custody in a court in New Jersey. In this case the wife argued that the judgement by the court in Gaza was not entitled to recognition in the Untied States. The trial court agreed with the wife and the husband then appealed.
The New Jersey Superior court held that the judgment by the court in Gaza was not entitled to recognition under the principle of comity. The court stated that it was firmly established that custody decisions must be based upon the best interests of the child. Islamic law, however created an irrefutable presumption that the husband should receive custody. Because this standard was not based upon the child's best interests, the decision by the court in Gaza violated the New Jersey public policy and it was not entitled to recognition under the principles of comity.
Additionally, a New Jersey court will refuse to enforce a foreign judgment of divorce if it can be proven that it is the product of fraud. What constitutes fraud is the "million dollar question." It is well established that if a judgment for divorce was obtained by fraud in a foreign country, then a New Jersey court will refuse to recognize the foreign judgment of divorce under the principles of comity.
Are there any equitable defenses to contesting a claim to invalidate a foreign divorce judgment?
Even if a foreign country's judgment of divorce should not be recognized pursuant to the principles of comity, it is quite possible that the spouse who is opposed to the recognition of the judgment will be barred from equitable doctrines from contesting the validity of the foreign judgment of divorce. If a defendant spouse made an appearance at the foreign divorce proceedings, then a New Jersey court will often conclude that the defendant is barred from claiming that the divorce is invalid.
Furthermore, a defendant spouse will be barred from arguing that a prior foreign divorce is invalid if that party unreasonably delayed in attacking the foreign judgment of divorce. Moreover, the delay must also be proven to cause prejudice to the opposing spouse. Once again it must be emphasized that each case is on a case by case basis. There is no hard line rule or caselaw that governs the enforcement of foreign divorce judgments. A New Jersey family court will focus their analysis on; a) the domicile of the parties; b) the due process considerations of the foreign judgment of divorce; and c) whether in the context of the entire marriage the support provisions and the division of the assets is fair and reasonable.
What are the problems that are associated with enforcing foreign judgments of support, child custody and equitable distribution in New Jersey?
Just as with foreign judgments of divorce, if a foreign court determines issues of child support, child custody, or a division of the parties' property, those judgments should only be recognized if they do not violate the principles of comity amongst nations.
However, a vexing question of whether a New Jersey court will recognize and enforce a recognition of a child support order, child custody, or equitable distribution decision presents additional issues. Even if a judgment of support or child custody rendered by a court in a foreign country is entitled to recognition under the doctrine of comity, a New Jersey court may still not recognize the judgment.
A New Jersey court will focus their inquiry as to whether the foreign support order or custody decree is fair and reasonable. A New Jersey court will still insist on reviewing the parties' income information before it rules on any enforcement applications. If the foreign support order is consistent and reasonable in light of the parties' financial status, then this increases the odds that the foreign support order will be recognized.
If a New Jersey court is faced with enforcing the terms of equitable distribution in a foreign judgment of divorce, most judges will request that the parties submit a CIS. The judge will then review the distribution of the marital assets as delineated in the foreign judgment of divorce. Once again if the distribution of marital assets as specified in the foreign judgment of divorce is fair and reasonable, then this increases the odds that a New Jersey court will recognize it.
A New Jersey court will also closely scrutinize a foreign custody order or decree. In most cases the family court will order a "Best Interests" investigation before it will rule on any application to enforce a foreign custody judgment. The courts are "information" addicts. Most courts want to review as much information as possible before it will rule on any "heart wrenching" international custody battle. A family court judge has to "live" with their decision. Therefore, most family court judges will only make their decision as to an international custody dispute after a thorough and painstaking investigation has taken place.
Will a New Jersey court recognize a foreign court's judgment of custody?
With respect to child custody, although the Uniform Child Custody Jurisdiction Act (UCCJA) does not govern international cases section 23 of the Act permits family courts to apply the principles of the UCCJA to cases involve the courts of other nations.
In everyday family law practice, the court regularly relies on the provisions of the UCCJA when determining whether to enforce a foreign country's custody decision. Thus, not only must lawyers consider the general principles of comity in child custody matters involving foreign actions, but they also must consider the provisions of the UCCJA.
Furthermore, the foreign country at issue may be a party to the Hague Convention on the Civil Aspects of International Child Abduction. This convention states that children must be returned to their "habitual residence" if that residence is also a party to the convention. Thus, if the foreign country is a signatory to the Hague Convention, then a foreign country's custody judgment is not entitled to recognition in the United States unless the decision comports with the UCCJA, the Hague Convention, and the general principles of comity among nations.
Will a New Jersey court recognize a foreign court's judgment of alimony and child support?
Generally, a foreign order of alimony or child support will be recognized by a New Jersey court if the judgment complied with the general principles of comity. See, Schwartz v. Zik, 273 N.J. Super. 78 (Ch. Div. 1993); (New Jersey court recognized Israeli child support order pursuant to the principles of comity; husband was represented by counsel and the judgment did not violate the public policy of New Jersey.) In summary, a support judgment of a foreign country is entitled to recognition under the doctrine comity, absent a showing of fraud in obtaining the judgment. Moreover, a foreign chid support order or alimony award will not be enforced if it violates New Jersey public policy.
Will a New Jersey court recognize a foreign court's judgment of divorce as to the terms of equitable distribution?
As with support mattes, New Jersey courts have held that in order to consider questions of equitable distribution, the foreign court must obtain personal jurisdiction over the defendant. Thus, a New Jersey court is only required to recognize an equitable distribution decision by a foreign court if that court had obtained personal jurisdiction over the defendant.
What are the dangers of recognizing a foreign judgment of divorce?
It is very dangerous for a New Jersey court to recognize a foreign judgment of divorce. The courts of New Jersey should not encourage parties to leave the country in order to obtain "quickie" divorces. The side effects of obtaining "quickie" divorces can last for years if not decades. Moreover, the bottom line is that in many instances foreign divorce judgments are just not fair. Quite frequently, the other spouse does not receive notice of the divorce case and he or she does not participate in the foreign divorce proceedings.
Any person who is living in New Jersey should be required to litigate their divorce case here. If the parties are encouraged to litigate their divorce in the state where he or she lives, then it far more likely that the divorce will be a fair and equitable court proceeding. The bottom line is that in most foreign divorces the defendant spouse does not receive sufficient notice of the filing of the divorce case. Moreover, in a foreign divorce case it is very common that the defendant spouse does not participate in the legal proceedings. Therefore, in many cases a defendant spouse is not given a fair opportunity to contest a foreign divorce case.
In summary, a New Jersey court may very well be quite suspicious when it is faced with an application to enforce a foreign judgment for divorce. Most New Jersey courts will only recognize a foreign divorce judgment where at least one spouse is domiciled or is currently living in that foreign country.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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