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UNIT TWO
INTERNATIONAL DIVOICE: LITIGATING MARITAL PROPERTY AND SUPPORT RIGHTS
Section A
Jurisdiction and Procedure in International Divorce Litigation
1 Jurisdiction for divorce or separation proceedings in the United States is based on residence or domicile. A court in the state where a petitioner is resident or domiciled may enter an ex-parte divorce decree, even if it has no basis for exercising personal jurisdiction over the respondent. The court must have full personal jurisdiction over both parties, however, to enter orders concerning spousal support and marital property division. Subject matter jurisdiction over divorce and its financial incidents is conferred by state statutes.
2 Under this rule of divisible divorce jurisdiction, an ex-parte divorce decree based on the petitioner's domicile or residence within the forum state is entitled to full faith and credit in every state. Court orders concerning marital property and support rights are not entitled to full faith and credit, however, unless the forum court had personal jurisdiction over the respondent. Based on the same policies, courts in the United States give effect to many foreign ex-parte divorce decrees as a matter of comity, but do not recognize and enforce financial orders entered by a foreign court unless that court had full personal jurisdiction. (1) Obtaining Jurisdiction
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3 Courts have several means of acquiring personal jurisdiction over the parties to a divorce or separation action. By filing an action with a court, the petitioner submits to the court's personal jurisdiction. The court may obtain personal jurisdiction over a respondent based on his or her residence or domicile within the state. For jurisdictional purposes, courts construe residence and domicile generously in this context, extending their authority to individuals who live only part-time within the state. A court may also exercise personal jurisdiction based on a respondent's general appearance in a proceeding, and a respondent who files a responsive pleading without objecting to jurisdiction is typically deemed to have waived any of these defenses. 4 More controversially, a state court may exercise personal jurisdiction over a respondent who is personally served with process within the forum state. The leading case on this type of \jurisdiction\is Burnham v. Superior Court of California, which upheld California's exercise of personal jurisdiction over a defendant in a child support case based only on the fact that he had been served with process while present in the state. Before relying on Burnham-type service to confer personal jurisdiction on the court, counsel should be aware that foreign jurisdictions may refuse to enforce a decree entered on this basis, as tag jurisdiction is widely rejected outside the United States.
(2) Service of Process 5 Beyond the question of jurisdiction, due process requires that a respondent must be afforded notice and an opportunity for a hearing, even in the context of an ex-parte divorce. The same rule applies in international cases. If a state court has a basis for long-arm jurisdiction over a respondent, state law may authorize personal service on that respondent outside the jurisdiction. The question of whether substituted service is permitted is determined by the law of the forum, but the means utilized must also comply with the laws of the country in which service is made. 6 Because of the tradition of treating divorce actions as a type of in-rem proceeding, some forms of substituted service are permitted under state law when the respondent cannot be located or served using conventional techniques. In hollow v. hollow, the court approved service by e-mail in a divorce action in which the husband
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had relocated from New York to Saudi Arabia. Finding that the wife had made reasonable, though unsuccessful, efforts to effect service through an international process server and husband's employer, the court concluded that those methods were impracticable under the New York rule and that substituted service by e-mail would be the best means of providing the husband with notice of the proceedings.
7 Service of process on an individual in a foreign country is subject to both the law of the state where the action has been filed and any applicable provisions of foreign or international law. The United States has ratified the Hague Service Convention, and adherence to the convention is mandatory for service of process in civil proceedings--including family law matters--in any of more than sixty countries in which it is in force. Under the convention, each contracting state designates a central authority to receive incoming requests for service of documents. The U.S. Central Authority is the Office of International Judicial Assistance in the Department of Justice, and outgoing requests are managed by a contractor acting on behalf of the central authority.
8 As a treaty, the convention preempts inconsistent provisions of state law, and service in treaty countries that does not comply with the convention is ineffective, even if the respondent had actual notice of the proceeding. A party who fails to raise objections to service in a timely manner may be deemed to have waived them, however. Foreign defendants who are present within the territory of the United States may be served with process here, provided that service complies with the applicable procedural rules of the forum. Note also that service under the service convention does not confer personal jurisdiction in state court over a respondent who does not have the requisite minimum contacts with the state.
9 The United States has a treaty relationship with another group of countries under the Inter-American Convention on Letters Rogatory and Its Additional Protocol (IACAP), which also provides a mechanism for service of documents through a central authority. If the Hague Service Convention or the Inter-American Convention are not available, service by letters rogatory may be required. Outgoing letters rogatory are typically drafted by counsel and signed by a judge. Depending on the
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country to which they will be sent, the letters must be authenticated and translated, and then submitted to the secretary of state for transmittal through diplomatic channels. Depending on the law of the other country involved, it may be possible to transmit the letter through local legal counsel. Note that service of process on a member of the U.S. armed services who is stationed abroad may be facilitated by military authorities.
(3) Divorce Jurisdiction in Other Countries 10 Foreign countries base jurisdiction for divorce on connecting factors, including residence or domicile and, in some countries, the nationality of the parties to the marriage. As a result, there are a variety of circumstances in which foreign citizens residing in the United States and U.S. citizens living in a foreign country may find themselves defending divorce proceedings abroad. In Canada, the federal Divorce Act confers jurisdiction to grant a divorce on the court of a province where either spouse has been \a year prior to commencing proceedings. Marital property matters are governed by provincial or territorial law. In Mexico, divorce jurisdiction is based on domicile. Within the European Union (EU), divorce jurisdiction is defined by the Brussels IIA Regulation, also known as Brussels II bis or Brussels II Revised. Under Brussels IIA, courts can exercise jurisdiction in divorce, legal separation, or marriage annulment proceedings based on the spouses' habitual residence, or based on the spouses' joint nationality or domicile.
11 In contrast with the \divorce\rule in the United States, many foreign countries do not distinguish between the jurisdiction required for a divorce or separation decree and the jurisdiction necessary to address the couple's property and support rights. From the perspective of courts in the United States, financial orders that satisfied jurisdictional rules in the country where they were entered, but which were not based on facts that would give rise to personal jurisdiction over the respondent spouse, would not satisfy the due process requirements for recognition and enforcement in the United States.
12 In situations in which more than one country within the European Union could assert divorce jurisdiction, Brussels IIA gives a strict priority to the first
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