Divorce laws vary from state to state and from country to country. The process can be complex, even if you were married and plan to finalize your divorce in the same state. However, if you decide to get a divorce while you are traveling or living abroad, you may have questions about whether your divorce will be considered valid upon your return to the United States. While there are some exceptions, a foreign divorce is generally recognized in the U.S., though there are certain requirements that must be met in order for the divorce to be recognized in the U.S. If you have questions or concerns about the validity of your foreign divorce, contact an experienced divorce lawyer.
The majority of divorces that are finalized in another country are valid in the U.S., provided the couple files the divorce in an acceptable manner in the state where they live, and that they complete any additional documentation that is required in their state. Every divorce is unique, and the country where the divorce was finalized may impact the validity of the process. In addition, some countries require the couple to reside in the country for a specified period of time before the divorce is considered legal. If the couple does not follow the set of rules that are in place in their state’s jurisdiction, the divorce will likely be considered invalid.
What Do I Need to Know About Comity Recognition?
If you were divorced in another country, and you are returning to the U.S., the legitimacy of your divorce is based on “comity,” the legal principle that allows the U.S to recognize a divorce judgment that was made in another country. In order for a foreign divorce to be considered valid in the U.S., both parties must have participated in the divorce process, and had the opportunity to speak and be heard during the proceedings. In addition, the foreign divorce must be consistent with the public policies of the state in which the couple resides.
What Are the Different Types of Foreign Divorces?
There are four types of divorces that occur in other countries, including the following:
- Ex Parte: These are based on the petitioner’s physical presence in the foreign country, with notice given to the absent defendant.
- Bilateral: In this type of divorce, both parties are physically present in the divorcing nation, or it is based on the physical presence of the petitioner, and the voluntary appearance by the defendant through his or her lawyer.
- Void: An ex parte divorce is obtained without actual or constructive notice to the defendant. This type of divorce is not recognized by the court.
- Practical recognition: This type of divorce may be granted if one spouse is unable to challenge the validity of judgment in a foreign country because the challenge would be considered unfair, given the circumstances. In many jurisdictions, the spouse who consented to the divorce is prohibited from attacking it later based on the principle of fairness called “estoppel.” This is a legal principle that prevents someone from arguing something that they previously agreed to.
Why Would Someone Consider a Foreign Divorce?
There are a number of reasons why a couple may choose to obtain a divorce in another country. Some countries have divorce laws that will allow the couple to finalize the divorce much more quickly. For example, in countries like Mexico, Haiti and the Dominican Republic, a typical divorce can often be resolved overnight, and more complex cases can be finalized over the course of a weekend. In fact, in the Dominican Republic, if a foreign couple is seeking a divorce and both spouses agree to file before the Dominican courts, only one spouse is required to appear in the courtroom and the entire process can take as little as a half an hour. In order for the divorce to be held as valid, due process must be observed.
In some cases, one spouse may be interested in a foreign divorce if the laws in a particular country are more favorable to his or her goals, but conflict with the other spouse’s goals. This is considered malicious intent by the U.S. courts. If this is the case, the divorce that was obtained in another country will not be recognized or enforceable in the U.S.
What Factors Do the Courts Consider When Reviewing a Foreign Divorce?
The New Jersey courts are not obligated to recognize a foreign divorce, but will likely do so if it is in accordance with the principles of comity among nations. The court will thoroughly review the facts of the case to determine whether the terms of the divorce violate the person’s due process rights. This will be based on the following factors:
- Domicile of the parties: If either spouse is a domiciliary of the foreign country where the divorce was provided, the divorce will likely be recognized by the New Jersey court. However, if neither spouse was physically present in the foreign country when the court granted the divorce, it will not be entitled to recognition by the New Jersey courts.
- Notice: According to the due process clause of the 14th amendment, the defendant spouse must be given reasonable notice of any civil action that is taken against him or her. If notice of the application for the foreign divorce and hearing is not provided, the court will not recognize the foreign judgment of divorce based on the doctrine of comity.
- Public policy: If a foreign divorce was obtained under circumstances that offend the public policy of the state where recognition is sought, the divorce will not be recognized.
- Fraud: A foreign divorce will not be recognized in the U.S. if it was obtained under fraudulent circumstances. The judgment may be subject to a collateral attack in a proceeding in the U.S. if the divorce was obtained by fraud in a foreign country.
How Are Child Custody and Support Issues Impacted by a Foreign Divorce?
This is handled in much the same way as judgments of divorce. If child custody issues and matters of child support are determined by a foreign court and part of the divorce process, the judgments will only be recognized if they follow the principles of comity among nations.
The New Jersey court will determine whether the support order or custody decree is fair and reasonable, and thoroughly review both parties’ income information before ruling on enforcement applications. The foreign support order may be recognized if it is consistent and reasonable based on the parties’ financial status. The court will review the custody order carefully to ensure that it is in the best interests of the child before it enforces the judgment. Family court judges will typically conduct a thorough and painstaking investigation since their ruling will have a major impact on the well-being of the child.
Are There Any Risks Associated with Recognizing a Foreign Divorce?
While it may be tempting to jump on a plane to Mexico or the Dominican Republic and obtain a quick divorce where the defendant spouse is not notified and does not have the opportunity to participate in the legal proceedings. That means that he or she does not have the opportunity to contest the divorce if there are aspects about the proceedings that he or she feels are unfair. It is recommended that couples who reside in New Jersey have their divorce settled in-state, as it is much more likely that they will reach a fair and equitable outcome.
How Can a Divorce Lawyer Help Me with My Foreign Divorce Case?
If you have questions or concerns regarding the validity of a divorce that you obtained in a foreign country, it is highly recommended that you contact a divorce lawyer who will thoroughly review the divorce decree and determine whether the divorce is recognized by your state based on comity. When you meet with your divorce lawyer, make sure that you provide him or her with copies of the laws governing divorce from the foreign country, the divorce decree and copies of the marriage certificate. When it comes to foreign divorces, every case is unique, so you are urged to discuss any questions you may have with a divorce lawyer who has experience with foreign divorces.
Morristown Divorce Lawyers at Lyons & Associates, P.C. Assist Clients with Matters Related to Foreign Divorces
If you obtained a divorce in a foreign country, and wish to determine whether the divorce is valid in New Jersey, contact our Morristown divorce lawyers at Lyons & Associates, P.C. To schedule a free, confidential consultation, call us today at 908-575-9777 or contact us online. Our offices are located in Somerville, New Jersey and Morristown, New Jersey, where we service clients throughout the state, including those residing in Bedminster, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, Morris Plains, Bridgewater, Woodbridge, Basking Ridge, Mendham, Morristown, South Plainfield, Somerset, across Somerset County, Morris County, Union County and throughout New Jersey.