Bar News - November 18, 2015
Family Law: Accidental Bigamy, Comity, and Foreign Divorces
By: Jamie Gorton
Case studies of Two Accidental Bigamists
Jabes, a citizen of the Dominican Republic, obtained a “special” divorce from the Dominican Republic while both he and his wife were domiciled in New York. He then moved to New Hampshire and married Jessica, a natural US citizen. Jessica applied for Jabes’s green card on the basis of their marriage. USCIS detected the “special divorce” and denied the petition. Jabes had overstayed his visa, so USCIS initiated deportation proceedings. Jabes must remarry Jessica to defend against removal, but must first obtain a New Hampshire divorce through alternative service, as his estranged wife’s whereabouts are unknown. Jabes’s future in the United States will hinge entirely on New Hampshire family law, at least in the short term.
Emmanuel, a citizen of Haiti, divorced his estranged wife through a Haitian action while he resided in New Hampshire and his wife resided in Florida. He married Saraphina, who also relied on a Haitian divorce that lacked personal jurisdiction. Saraphina applied for immigration benefits for Emmanuel and his two children, aged 19 and 20. USCIS denied the application for the green card. Because Emmanuel has Temporary Protected Status from Haiti, he is spared from the threat of deportation. However, his two children will likely lose their eligibility for the green card unless both Emmanuel and Saraphina obtain divorces, remarry, and have Saraphina file a new petition before the children turn 21.
Practically speaking, the validity of a foreign divorce is not an issue ready-made for judicial review. An applicant for a marriage license must disclose and document any prior divorces upon pain of criminal penalties, but an applicant who relies in good faith on a foreign divorce decree does not need to demonstrate that a foreign divorce is recognizable by New Hampshire. As a result, reliance on a foreign divorce can create sticky family law dilemmas, including “accidental bigamy.”
Comity, Jurisdiction, and
Foreign Divorce Judgments
The United States is not a signatory to the Hague Convention on the Recognition of Divorces and Legal Separations. Without an international framework, the individual states reserve their power over marriage regulation. The states are then guided by the doctrine of comity: the reciprocal recognition of the validity of a foreign judicial act. Comity, as articulated by Supreme Court Justice Joseph Story, is a common law principle that a foreign judgment is prima facie evidence of its own correctness. If a divorce obtained in a foreign country occurred where both parties had notice of the proceeding and an opportunity to be heard, the divorce is generally recognizable.
However, comity is also described as a non-obligatory courtesy rather than a binding force. New Hampshire courts will set aside comity as a matter of discretion if the result would violate a strong public policy, or if it would leave the court in a position where it is unable to render complete justice. Therefore, many states perform a second inquiry to see if there was satisfactory jurisdiction exercised. New Hampshire statute, enacting the Uniform Divorce Recognition Law (UDRL) at RSA 459:1, explicitly forbids the recognition of a foreign divorce if both parties were domiciled in New Hampshire, even if the divorce decree is valid in the issuing jurisdiction. Many states that have not enacted the UDRL have similar statutes or precedent that require at least one spouse to have been subject to the personal jurisdiction via domicile of the issuing court.
These laws are grounded in clear public policy: to discourage ex parte, or “mail-order divorces,” that should have properly been heard. The discouragement of these “mail-order divorces” serves to ensure notice and due process.
Should the issue arise, a practitioner presented with a foreign divorce decree should always ensure that a certified English translation is prepared, and should carefully question the whereabouts and domicile of both spouses at the time of divorce.
Accidental Bigamy and
The first issue in the mind of a family law practitioner may turn to the issues of registration, enforcement, and child custody, which were treated extensively in the New Hampshire Supreme Court’s 2014 decision in Yaman v. Yaman. The inquiry between divorce validity and enforcement of child custody overlap somewhat, as both comity and the Uniform Child Custody Jurisdiction and Enforcement Act require notice and an opportunity to be heard. If there was insufficient notice or hearing, both the child custody judgment and divorce judgment are open to simultaneous attack as to their validity and enforcement.
Another fundamental issue is if a person relying on a foreign divorce is legally free to remarry. Bigamy is a Class B felony in New Hampshire and is void without process. In the case of accidental bigamy, the marriage is nonetheless voidable. In a subsequent “do-over” divorce, equitable distribution of marital assets would be difficult, particularly if the assets of the innocent putative spouse are comingled.
The issue of accidental bigamy is disproportionately common in the practice of immigration law. An adjudicator from US Citizenship and Immigration Services (USCIS) is often the first government official to review the validity of a foreign divorce in the context of applying for a green card through marriage. USCIS examiners are attentive to jurisdictional issues in divorces, especially as certain jurisdictions, e.g. the Dominican Republic, offer one-day “special” divorces that do not require domicile. If the USCIS examiner identifies defective jurisdiction in the underlying divorce, the application for immigration benefits will be denied. A denial of an immigration application causes not only the denial of the green card, but frequently triggers deportation proceedings.
Jamie Gorton is the principal attorney at the Law Offices of Jamie Gorton, which serves the immigration needs of businesses and American families through offices in Manchester, NH, and Malden, Mass.