Board Certified Family Law Specialist Matt Arnold answers the question: ” I’m considering separating from my spouse; what actions should I refrain from doing?”
Prior to and during the 1970s, the so-called “Mexican divorce” was having something of a moment. Fed up with the lengthy and expensive divorce process in the United States, couples from the States would pop across the border for a quickie divorce proceeding, without the lengthy waiting periods required in many states. Mexico wasn’t the only country host to many a drive-through divorce proceeding; they became popular in a host of Central American countries, particularly the Dominican Republic, as well as the Caribbean islands.
Today, a plethora of online companies continue to claim to offer valid Mexico divorces obtainable in one business day and even if one party is unwilling or unable to participate in the process. Flat-rate fees and “guaranteed” legal legitimacy claims make the offers seem like a no-brainer to couples wanting to expedite the process. Hundreds if not thousands of couples fall prey to the overseas quickie divorce scheme each year.
In this case, the old maxim that if something seems to be too good to be true, it probably is, applies. Changes in American divorce law, foreign residency requirements, and domestic judicial opinion as to interpreting foreign divorce judgments make many foreign divorce judgments non-binding, or void, in the United States.
Changes in American divorce law
Historically, divorce in the United States was fault-based, meaning one party had to argue that the other spouse did something that caused the marriage to fail. However, beginning with California in 1969, many states gradually began adopting some form of no-fault divorce. In some respects, this made achieving divorce easier to obtain—as long as parties lived separately for the requisite period of time, they could obtain a divorce without having to prove the other party was at fault. There was a short-term boom in divorce rates during this time.
However, no-fault divorce also negatively impacts the divorce process for others. It requires couples to live separately for a sustained period of time, often for at least a year. In cases where there is no intent to reconcile by either party, this length of time can be a torturous obstacle to moving on with your life. The 1970s American shift towards no-fault divorce also saw a spike in foreign “divorces,” particularly in Mexico. If a divorce was uncontested, meaning both parties agreed, and there were no children or custody issues, then divorce judgments could be obtained there in matter of a quick hearing or two with the judge.
Changes in foreign residence requirements
Partially as a reaction to this influx of “tourist” divorces, in the 1970s many Mexican courts stopped accepting divorce petitions from couples who were not already residents of Mexico. American federal law does not require our courts to recognize foreign divorce judgments, and the courts here will only recognize a foreign divorce for the sake of 1) comity, or judicial efficiency 2) respect for other nations’ laws, and only to the extent that the foreign decree is enforceable in the country that rendered it. Because of this, foreign divorce decrees will only be enforceable in countries with residency requirements like Mexico now has if at least one of the petitioners is already a resident of the foreign country.
Changes in American court recognition of foreign divorce judgments
Besides domicile, other factors our courts now take into account when making a determination on whether or not to recognize a foreign divorce judgment include notice, public policy and fraud. “Notice” refers to whether or not the non-filing party was aware of, and given a chance to participate in, the proceeding. Public policy is a broader consideration, but is often used to examine custody determinations from other countries. For example, custody orders in countries that do not use the “best interests of the child” standard used in family law in the United States will not be recognized. Finally, in cases where fraudulent misrepresentation of assets or other intentionally fraudulent behavior is indicated, courts will not recognize a foreign divorce judgment.
If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
About the Author
Matthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.
Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.
A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.
In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.
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