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Foreign Divorce, How Do You Know If It Is Valid?

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Question: Foreign Divorce, How Do You Know If It Is Valid?

This is general information only. Each case is different and questions regarding interpretation of specific U.S. state law and foreign laws should be addressed with an attorney in your jurisdiction.

Answer: STATE v. FEDERAL JURISDICTION:

Marriage and divorce are generally considered matters reserved to the states rather than to the federal government. There is no treaty in force between the United States and any country on enforcement of judgments, including recognition of foreign divorces.

RECOGNITION BASED ON COMITY:

A divorce decree issued in a foreign country generally is recognized in a state in the United States on the basis of comity 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 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 (one party to the divorce action is absent) divorce decree, states usually consider the jurisdictional basis upon which the foreign decree is founded and may withhold full faith and credit if not satisfied regarding domicile in the foreign country. Many state courts which have addressed the question of a foreign divorce where both parties participate in the divorce proceedings but neither obtains domicile there have followed the view that such a divorce invalid.

AUTHORITY COMPETENT TO DETERMINE VALIDITY OF FOREIGN DIVORCE IN A U.S. STATE:

Questions regarding the validity of foreign divorces in particular states in the United States should be referred to the office of the Attorney General of your state. It may be necessary to retain the services of a private attorney if the office of the state Attorney General does not provide such assistance to private citizens. Provide counsel with copies of foreign marriage certificates, divorce decrees and copies of foreign laws concerning divorce, which may be available from the foreign attorney who handled the divorce.

MIGRATORY DIVORCES:

Foreign "migratory" divorces fall into four basic categories.

  • Ex Parte divorces, based on the petitioner’s physical presence in the foreign nation, with notice or constructive service given to the absent defendant.
  • Bilateral divorces, based on the physical presence of both parties in the divorcing nation, or the physical presence of the petitioner and the voluntary "appearance" by the defendant through an attorney.
  • Void divorces, where an ex parte divorce is obtained without notice, actual or constructive, to the absent defendant. Courts do not recognize or enforce this type of divorce.
  • Practical recognition divorces, wherein practical recognition may be afforded such decrees because of estoppel, laches, unclean hands, or similar equitable doctrines under which the party attacking the decree may be effectively barred from securing a judgment of invalidity. Many jurisdictions will prohibit the spouse who consented to the divorce from attacking it later under a principle of fairness called "estoppel". Thus, a party may be precluded from attacking a foreign divorce decree if such an attack would be inequitable under the circumstances.
REGISTERING FOREIGN DIVORCES AND THE ROLE OF U.S. EMBASSIES AND CONSULATES ABROAD:

There are no provisions under U.S. law or regulation for registration of foreign divorce decrees at U.S. embassies or consulates abroad.

UNIFORM STATE LAWS AND REGISTRATION OF DIVORCES:

The Uniform Act on Marriage and Divorce (1970, 1973), 9A Unif. Laws. Ann. 461 (Supp. 1965) is in force in Arizona, Colorado, Georgia, Illinois, Kentucky, Minnesota, Montana, and Washington State. Section 314(c) of the Uniform Act on Marriage and Divorce establishes a procedure for the clerk of court where the divorce decree is issued to register the decree in the place where the marriage itself was originally registered. The Uniform Divorce Recognition Act, 9 Unif. Laws Ann. 644 (1979), specifically denies recognition to a divorce decree obtained in another jurisdiction when both spouses were domiciled in the home state. The Uniform Divorce Recognition Act is in force in California, Nebraska, New Hampshire, North Dakota, Rhode Island, South Carolina and Wisconsin.

FOREIGN MARRIAGE CERTIFICATES:

In the absence of the issuance of a "Certificate of Witness to Marriage," copies of foreign marriage certificates may be obtained directly from the civil registrar in the foreign country where the marriage occurred. Contact the embassy or consulate of the foreign country in the United States for guidance on how to obtain copies of foreign public documents.

PROOF OF FOREIGN DIVORCE:

Obtain a certified copy of the foreign divorce decree from the court in the foreign country where the divorce decree was issued. Then have the document authenticated for use in the United States. Finally, obtain a certified English translation of the divorce decree (the translator executes a certificate before a notary public in the United States). When requesting copies of foreign public documents such as marriage or divorce records, it may be advisable to write to the foreign authorities in the language of the foreign country. Enclose copies of pertinent documents and any required fees in the form of an international money order.

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