Will a foreign divorce be recognized in the state of New York? The first question that must be answered is what is a foreign divorce?
A foreign divorce is one granted from another state in the union or another country. With respect to divorces from a sister state, under full faith and credit clause of the U.S. Constitution, New York will give grant full faith and credit to judgments from sister states. What if the judgment came from another country? That was the issue presented to the Court in Ahmad v Khalil.
In this case, the parties were married in Jordan. After two years, they moved to New York. After approximately eight years, the mother moved back to Jordan with the children. Father continued to provide financial support to his family. A court in Jordan granted the Wife’s petition for divorce. That divorce action dissolved the marriage but did not address issues relating to child support and distribution of assets. The Husband commenced an action in Jordan relating to the custody of the children. The Wife then starts an action in New York, seeking maintenance and child support.
Courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the Courts to judgments of sister states. Absent a showing of fraud or some showing that recognizing a divorce from a foreign state would be against some strong public policy. With respect to public policy, this exception is rarely used and only considered when the divorce in the foreign country is counter to fundamental notions of what is decent and just. Therefore, for a court to refuse full recognition to a lawful foreign judgment, it must be demonstrated that he decree violates some fundamental principle of justice, some prevalent conception of good morals or some deep-rooted tradition of the common good. Essentially, Courts will generally look to validate and enforce foreign judgments.
In this case, the Wife attempted to set aside the Jordanian divorce decree by arguing a lack of due process. She argued that in Jordan, a husband is allowed to obtain a divorce unilaterally without notice or consent of the wife. The Court did not give much credit to this argument. It appears that the wife actually started the divorce in Jordan and then withdrew her action there when she discovered that it was to her financial best interests to obtain a divorce decree in the State of New York. Thus, the Court recognized the Jordanian divorce.
Though the divorce decree was recognized by the Court, there was martial property that was located in New York. The Court allowed the wife to litigated the issue regarding the equitable distribution of the New York property as this court would be the most convenient court to hear this matter. The Court declined to hear issues related to child support, maintenance and distribution of property in Jordan. The Court reasoned that the children had lived and current live in Jordan. There is Jordanian property to be disposed of and there are procedures in Jordan which the wife can avail herself to address these issues.
When faced with a foreign divorce, the going in position of the Courts will be that the divorce will be enforced absent a showing of fraud in the procurement of said divorce. If your spouse comes home one day and announces that you have been divorced through a judgment from another country, see us immediately. Typically we see this issue arise from divorce decrees granted in the Dominican Republic. Swift motion practice will be needed to protect your rights.