Divorce is hard. The legal process of ending a marriage is complicated, and can seem never ending. Navigating a divorce can be challenging when you and your spouse are from the same place, but when your divorce spans different countries, it might leave you wondering, "Is my foreign divorce valid?"
Each foreign divorce case is different, and questions regarding the interpretation of a specific law your state might have should be addressed with an attorney in your area—no two cases are the same.
What is Foreign Divorce?
Foreign divorce is a legal separation of marriage obtained in a different state or country from the place where one spouse lives.
State vs. Federal Jurisdiction in Foreign Divorce
In the U.S., marriage and divorce are generally considered matters reserved to the states rather than to the federal government. There is no treaty between the United States and any country that pertains to enforcement of judgments, including the recognition of foreign divorces.
Recognition Based on Comity
A divorce decree issued in a foreign country is generally recognized by a state in the United States on the basis of comity—the mutual recognition by nations of the laws and customs of others—provided both parties to the divorce received adequate notice.
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—when one party to the divorce action is absent—states usually consider the jurisdictional basis upon which the foreign decree is founded, and may withhold "full faith and credit" if not satisfied by a party's 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 is invalid.
Authority to Determine Validity of Foreign Divorce in a U.S. State
Questions regarding the validity of foreign divorces 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.
Ex Parte Migratory Divorce
Ex Parte divorces are based on the petitioner’s physical presence in the foreign nation. For the absent defendant, notice or constructive service is given.
Bilateral Migratory Divorce
Bilateral divorces are 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 Migratory Divorce
Void divorces, where an ex parte divorce is obtained without notice to the absent defendant—neither active or constructive. Courts do not recognize or enforce this type of divorce.
Practical Recognition Migratory Divorce
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.
Practical recognition may be afforded due to 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.
Registering Foreign Divorces Abroad
There are no provisions under U.S. law or regulations for the registration of foreign divorce decrees at U.S. embassies or consulates abroad.
Registering Foreign Divorces in the U.S.
The Uniform Act on Marriage and Divorce is followed 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 specifically denies recognition to a divorce decree obtained in another jurisdiction when both spouses were living 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. Next, 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.