Validity of Foreign Divorces under New York Law

by ECL Writer
Foreign Divorces under New York Law

When a couple decides to end their marriage, the divorce process can be complicated and emotional. This can be further complicated when the divorce is granted in a foreign country. In the state of New York, the validity of foreign divorces can be a contentious issue, as the state has its own laws and requirements for divorce. Understanding the validity of foreign divorces under New York law is essential for those who have divorced or are seeking a divorce outside of the state or country. This Eastcoastlaws.com article will provide an overview of the requirements for recognizing a foreign divorce in New York and the factors that can impact its validity. By the end of this article, readers will have a better understanding of the legal implications of foreign divorces in New York and how to navigate the process of having their divorce recognized in the state.

What is a Foreign Divorce Decree?

Many nations give their citizens the option of using their home country’s legal system, which may include getting a divorce without one or both spouses being physically present in the nation. Consider the scenario where Henry and Sarah were both born and wed in Country A, a foreign nation, and have been residing and working in New York. Consider a scenario in which Henry requests a divorce from Sarah and Country A permits Him to do so by sending documentation over the mail.

U.S. state courts and U.S. immigration officials frequently refer to divorce, like Henry and Sarah’s, that is initiated in a foreign nation where neither spouse resides at the time of the divorce as a “mail order” divorce. Because of their experience with their native country’s legal system and cultural norms, many people who are foreign nationals find mail-order divorces to be more appealing. In most circumstances, the cost of the divorce is also much lower.

Will New York Recognize Foreign Divorce Decrees?

It varies. There are specific standards that must be satisfied, such as providing appropriate notice of the divorce, but generally speaking, divorce decisions issued in foreign nations are accepted in New York on the grounds of “comity” (civility and kindness). However, if a foreign divorce violates New York law, such as a so-called “mail order” divorce that does not call for a personal appearance from either side, New York will not recognize the divorce.

In contrast to many other states in the country, New York will recognize a divorce order issued in a foreign nation that is not either spouse’s residence, providing the following conditions are satisfied:

  • both spouses must receive adequate notice
  • there must be some physical presence on the part of at least one spouse within the jurisdiction (authority) of the court rendering the divorce – this is usually met when the requesting spouse is in a foreign country to deal with the divorce proceedings, and
  • there must be some type of personal appearance or submission to the foreign court’s authority by the responding spouse (the spouse that is not seeking the divorce) – this is typically met by the responding spouse either appearing in person in the foreign court or signing something showing that he or she agreed to allow the foreign court to make divorce-related decisions and terminate the marriage, such as a written response to the divorce.

If these requirements are not met, New York courts will not issue a decree validating the foreign divorce.

What Proof Will I Need to Validate My Foreign Divorce in New York?

The court in the foreign nation where the divorce decree was issued must provide you with a certified copy of the decree. The divorce decree should be translated into certified English so that the court can read it, and you should get the document validated for use in the United States.

Can I Fight Against a Foreign Divorce Decree in New York?

Not always. You can’t challenge an overseas divorce if:

  • you personally appeared in the foreign court and filed an answer
  • you voluntarily appeared in the foreign divorce proceeding and raised the issue of jurisdiction (but you might be able to overturn the divorce if your appearance was unauthorized, fraudulent, or coerced)
  • you have benefited from, or taken advantage of, the benefits of the foreign decree, such as by remarrying in reliance on the overseas divorce
  • your “ex-spouse” got remarried in reliance on the foreign judgment, or
  • you’ve complied with (followed) the terms of a separation or divorce agreement that was incorporated into the foreign decree.

Even if your ex-spouse used the validity of the overseas divorce to his or her disadvantage, such as when he or she remarried in reliance on the foreign divorce decree, you can still challenge the validity of the divorce in a New York matrimonial action if your spouse obtained a “mail-order” or ex parte decree (meaning without notice to you or without your appearance).

What Happens After a Court Recognizes My Foreign Divorce?

When a New York court accepts a foreign divorce decree, it can be used as the foundation for a lawsuit seeking financial relief, including the equitable division of marital assets. No post-judgment financial compensation will be available to the spouses of a foreign divorce decision that has been found to be invalid.

Undoubtedly, a person’s future family life is impacted by the legality of a divorce obtained abroad. Aspects of both New York and international law should be taken into consideration in order to prevent challenges to the legitimacy of a divorce obtained abroad. If you have any questions, get in touch with a local, skilled family law attorney.

Resources

For more information, click here for the section of the US Department of State Website that deals with foreign divorce.

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