Divorce Overseas: Validity of Foreign Country Divorces under New York Law
By Rong Kohtz, Esq.
Marriage and divorce are considered matters reserved to the states rather than to the federal government in the United States. A divorce decree issued by a foreign country generally is recognized in a state on the basis of comity, provided that the parties have fulfilled the requirements imposed by the issuing country?s law as well as the state?s law.
Many countries offer their oversea citizens the opportunity to utilize their home country?s judicial system, including obtaining a divorce without either party?s physical presence in the country. Such a divorce undertaken in a foreign country where neither of the parties to the marriage lives at the time of the divorce is often referred as a ?mail order? divorce by state courts and the United States immigration authorities. For many who are originally from a foreign country, a ?mail order? divorce is appealing because the parties are more familiar with the judicial system and legal culture in their home country, and in most cases the legal cost is significantly lower as well. However, a divorce obtained in a foreign country will not normally be recognized as valid in most of the states if neither of the spouses had a domicile in that country, even though domicile is not a requirement for jurisdiction under the divorcing country?s laws.
New York, unlike many other states in the United States, will recognize a divorce decree rendered in a foreign country not based on domicile of either of the parties provided there is some physical presence on the part of at least one party within the jurisdiction of the court rendering the divorce, and some type of appearance or submission to jurisdiction by the other party. New York courts have ruled that New York will recognize the foreign nation divorce decree as a matter of comity. No such recognition, however, will be afforded if the judgment is repugnant to New York public policy, as, for example, a so called "mail order" divorce without personal appearance by either party. In order for a divorce decree of a foreign court to be recognized in New York State, the foreign court must first have had in personam jurisdiction over both spouses. In addition, New York requires that both parties consent to a foreign court?s jurisdiction and that at least one party?s residency has been established through a statutory ?brief contact? through one party?s physical appearance at the divorce proceeding in the foreign country.
Once a foreign decree of divorce is recognized by the court, it can serve as a predicate for an action in New York seeking financial relief, including equitable distribution of marital property. Therefore, the parties of an invalid foreign country divorce decree will not be able to seek post-judgment financial relieves. More importantly, the validity of a divorcee?s remarriage is determined according to the law of the place of celebration. Thus, the validity of a person?s remarriage depends on whether New York will recognize the foreign divorce decree purporting to terminate his/her prior marriage.
Obviously, the validity of a foreign divorce affects a person?s future family life. In order to avoid future attack to the validity of a foreign divorce, both New York law and foreign law factors should be considered.