DISCLAIMER: THE INFORMATION IN THIS CIRCULAR IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC U.S. STATE OR FOREIGN LAWS SHOULD BE ADDRESSED TO LEGAL COUNSEL IN THAT JURISDICTION.
STATE v. FEDERAL JURISDICTION: Marriage and divorce generally are considered matters reserved to the states rather than to the federal government. See, Sosna v. Iowa, 419 U.S. 393, 404 (1975) and Armstrong v. Armstrong, 508 F. 2d 348 (1st Cir. 1974). 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 (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 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 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 (Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978); Everett v. Everett, 345 So. 2d 586 (La. Ct. App. 1977); Kugler v. Haitian Tours, Inc., 120 N.J. Super. 260, 293 A.2d 706 (1972); Estate of Steffke v. Wisconsin Department of Revenue, 65 Wis.2d 199, 222 N.W.2d 628 (1974); Commonwealth v. Doughty, 187 Pa. Super. 499, 144 A.2d 521 (1958); Bobala v. Bobala, 68 Ohio App. 63, 33 N.E.2d 845 (1940); Golden v. Golden, 41 N.M. 356, 68 P.2d 928 (1937).
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 the state in question. 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: (Nichols, Recognition and Enforcement: American Courts, Look at Foreign Divorces, 9 Family Advocate 9-10, 37 (1987).
-- "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. 13 A.L.R. 3d 1419, 1452. 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. Scherer v. Scherer, 405 N.E. 2d 40, 44 (Ind. App. 1980), Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709, 262 N.Y.S.2d 86 (1965), and Yoder v. Yoder, 31 Conn.Supp. 345, 330 A.2d 825 (1974).
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. 22 C.F.R. 52 does provide for authentication of foreign marriage and divorce records. This is not a form a registration, but simply the placing of the seal of the U.S. embassy or consulate, or other competent authority in countries party to the Hague Legalization Convention, over the seal of the foreign court. See below for a detailed discussion of the authentication process.
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 obtaining 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. Information about uniform state laws is available from the National Conference of Commissioners on Uniform State Laws, 676 North St. Clair Street, Suite 1700, Chicago, Illinois 60611, tel: 312-915-0195 or via the Internet at http://www.law.upenn.edu/library/ulc/ulc.htm.
U.S. CONSULAR CERTIFICATES OF WITNESS TO MARRIAGE: With the repeal of the old 1860 statute on "solemnization of marriages", 22 U.S.C. 4192 on November 9, 1989, U.S. consular officers ceased issuing "Certificates of Witness to Marriage". Copies of certificates of witness to marriage issued between 1860 -1989 are available from the Office of Passport Services, Vital Records Section, CA/PPT/PS/PC, Suite 510, 1111 19th Street, N.W., Washington, D.C. 20522, 202-955-0307. See also the Passport Services section of the Consular Affairs home page on the Internet at http://travel.state.gov.
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. The documents may then be authenticated for use in the United States as explained below. English translations may be certified by translators in the United States before a notary public. 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.
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 as explained below. 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.
AUTHENTICATION OF DIVORCE AND MARRIAGE RECORDS: It may be necessary for you to provide foreign authorities or your attorney with authenticated, translated copies of your foreign divorce decree and any other pertinent documents. Consult your foreign attorney before going to this expense. An information flyer explaining the authentication process is available from the Office of American Citizens Services via our home page. Other available topics include Hague Legalization Convention and General Authentication Flyer. See also the main U.S. State Department home page at http://www.state.gov/.
U.S. SSA, VA and IRS DETERMINATIONS REGARDING FOREIGN DIVORCES: There have been a number of determinations by the U.S. Social Security Administration, Veterans Administration, and Internal Revenue Service regarding the validity of foreign divorces based on the laws of the state of residence applicable with respect to claims for benefits. For SSA, see http://www.ssa.gov/. See also, 20 C.F.R. 404.314, SSR 66-1; 20 CFR 404.328(a), 404.1101, and 404.1104, SSR 72-61; 20 CFR 404.335(a), SSR 73-10a; 20 CFR 404.336, SSR 75-16; SSR 61-65; 20 CFR 404.340(c), SSR 88-15c, Section 202(g)(1)(A) of the Social Security Act (42 U.S.C. 402(g)(1)(A) (Slessinger v. Secretary of Health and Human Services, 1A Unempl. Ins. Rep. (CCH), 17,843 (1st Cir. 1987). (Cunningham v. Harris, 658 F.2d 239, 243 (4th Cir. 1981).; Thompson v. Harris, 504 F. Supp. 653, 654 (D. Mass. 1980); Lugot v. Harris, 499 F. Supp. 1118 (D. Nev. 1980). For Veterans Administration, see 27 FR 6281, July 3, 1962, as amended by 35 FR 16831, October 31, 1970; 40 FR 53581, November 19, 1975; 52 FR 19349, May 22, 1987. For the IRS, see Estate of Felt v. Comm'r, 54 T.C.M. (CCH) 528 (1987). It is our understanding that when obtained in good faith and not a sham for tax-avoidance purpose, the Internal Revenue Service recognizes foreign divorces.
OTHER CONTACTS: It may be helpful for American attorneys not familiar with enforcement and recognition of foreign divorces to consult the following resources:
ABA - the Family Law Section of the American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611, 312-988-5000;
ABA Center on Children and the Law, 740 15th St., N.W., Washington, D.C. 20005, tel: 202-662-1740, http://www.abanet.org:80/child/home.html;
State or local bar association;
American Academy of Matrimonial Lawyers, 150 N. Michigan Avenue, Ste. 2040, Chicago, IL 50501, 312-263-6477, http://www.aaml.org/;
International Academy of Matrimonial Lawyers, Secretariat, 13 Claybury, Bushey, Herts WD2 3ES, United Kingdom, tel: (011)(44) 0181-950-6452; fax: (011)(44) 0181,950-8895; http://www.iaml-usa.com/;
International Society of Family Law, Brigham Young University School of Law, 518 JRCB, Provo, UT 84602;
International Bar Association (IBA), 2 Harewood Place, Hanover Square, London, WIR9HB, England, Tel: (011) (44) (171) 629-1206; Fax: (011) (44) (171) 409-0-456.
Library of Congress Law Library, Room 240, James Madison Bldg., 101 Independence Avenue, S.E., Washington, D.C. 20540, tel: 202-707-5079.
TREATIES: The United States is not a party to the Hague Convention on the Recognition of Divorces and Legal Separations of June 1, 1970 (978 U.N.T.S. 399 (975). See also, 5 Int'l Legal Materials 389, 393 (1966); 14 Am. J. Comp. L. 697, 700 (1966); 8 Int'l Legal Materials 31, 34 (1969); 8 Int'l Legal Materials 787, 800 (1969); 18 Int'l and Comp. L.Q. 488 (1969); 5 Family L.Q. 321 (1971); Reese, The Hague Draft Convention on Recognition of Foreign Divorces: A Comments, 14 Am. J. Comp. L. 692 (1966); Von Mehren, Draft Convention on the Recognition of Divorces and Legal Separations: Introductory Note, 16 Am. J. Comp. L. 580 (1968); Hampton, Hunning, & Wadsley, Current Legal Developments, Hague Convention on Recognition of Divorce and Legal Separation, 18 Int'l and Comp. L.Q. 483, 488 (1969). The Convention relates to such recognition but not to any ancillary matters such as findings of fault, orders for maintenance or custody of children. The Convention is in force in Australia, Cyprus, Czech Republic, Denmark, Egypt, Finland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovenia, Sweden, Switzerland and the United Kingdom.
ENFORCEMENT OF JUDGMENTS: The Department of State, Office of Overseas Citizens Services has available a general information flyer on the subject of enforcement of judgments which is accessible via our automated fax service or our home page on the Internet as explained below.
24 Am. Jur. 2d, Divorce and Separation, Sec. 971, 972, 27B C.J.S. Divorce Sec. 364-366.
Berke, Mexican Divorces, 7 Prac. Law. 84 (1961).
Bronstein, The Question of Haitian and Dominican Divorces, 166 N.Y.L.J., Sept. 21, 1971.
Ceschini, Divorce Proceedings in Italy: Domestic and International Procedures, 28 Family Law Quarterly, American Bar Association, 143, 150 (1994).
Comment, Mexican Bilateral Divorce -- A Catalyst in Divorce Jurisdiction Theory?, 61 Nw. U.L. Rev. 584 (1966).
Domestic Relations - Jurisdiction, Extension of Comity to Foreign Nation Divorce, 46 Tenn. L. Rev. 238, 241 (1978).
Dyer, Recognition and Enforcement Abroad, 9 Family Advocate No. 4, ABA Family Law Section, 5, 11-14 (1987).
Forscher, Haitian, Dominican Laws of Divorce Evaluated, 166 N.Y.L.J., (October 19-20, 1971).
Foreign Divorces, A Question of Jurisdiction, 5 Southern University L. Rev. 139 (1984).
Fulton, Caribbean Divorce for Americans: Useful Alternative or Obsolescent Institution?, 10 Cornell Int'l L. J. 116, 133 (1976).
Glassman, Recognition and Enforcement at Home, 9 Family Advocate No. 4, ABA Family Law Section, 4, 6-8, (1987).
Hackworth, Digest of International Law, Office of the Legal Adviser, U.S. Department of State, Vol. II, Chapter VI, Section 168, 382-391 (1941).
Holden, Divorce in the Commonwealth, 20 Int'l and Comp. L.Q. 58, 74 (1971).
Howe, The Recognition of Foreign Divorce Decrees in New York State, 40 Colum. L. Rev. 373, 376 (1940); 23 Colum. L. Rev. 782 (1923).
Juenger, Recognition of Foreign Divorces: British and American Perspectives, 20 Am. J. Comp. L. 1 (1972).
Mendes da Costa, The Canadian Divorce Law of 1968 and its Provisions on Conflicts, 17 Am. J. Comp. L. 214 (1969).
Nichols, American Courts Look at Foreign Decrees, 9 Family Advocate No. 4, ABA Family Law Section, 9-10, 37 (1987).
Pedersen, Recent Trends in Danish Family Law and Their Historical Background, 20 Int'l and Comp. L.Q. 332, 341 (1971).
Swisher, Foreign Migratory Divorces: A Reappraisal, 21 J. Fam. L. 9, 25n, 71-72 (1982).
Stone, The New Fundamental Principles of Soviet Family Law and Their Social Background, 18 Int'l and Comp. L.Q. 392, 406 (1969).
Turner, Divorce: Australian and German "Breakdown" Provisions Compared, 18 Int'l and Comp. L.Q. 896, 937 (1969).
Whiteside, Domestic Relations - The Validity of Foreign Divorce Decrees in North Carolina (Mayer v. Mayer) 20 Wake Forrest L. Rev. 765 (1984).
ADDITIONAL INFORMATION: The Office of American Citizens Services has available general information flyers on international judicial assistance, many of which are available through our automated fax system or via our home page.
Using the Autofax System:
Dial (202) 647-3000 using the phone on your fax machine. Follow the prompts to obtain the information that you need.
Using the Internet: Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs home page under Judicial Assistance. See also, the Department of State, Office of the Legal Adviser for Private International Law (L/PIL) home page for information regarding private international law unification. See also the home pages for many of our embassies.
QUESTIONS: Additional questions may be addressed to the U.S. Department of State, Bureau of Consular Affairs, Office of American Citizens Services, Room 4817 N.S., 2201 C Street, N.W., Washington, D.C. 20520, tel: (202) 647-5225 or 202-647-5226.
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