The Globalization of Family Law
It is no news to you or your clients that the world continues to grow smaller. If you represent emerging businesses, perhaps you have helped your retired Amazon executive perform her due diligence on a cell phone ringtones business she plans to run with partners in India. Estate planning more your emphasis? Maybe you have structured a family trust to handle tax issues related to your United Kingdom-based Boeing executive’s employee stock option plan. Maritime? Litigation is possibly perpetually just around the corner between your Seattle vessel agent/seafood wholesaler and its Russian vessel operator. And if you say none of the above, at the very least you have looked at the hot overseas markets and wondered why in the heck you have not invested in an international index fund yet. (Well, why haven’t you? Let’s face it: if you knew how to time the market you would never have sold Weyerhaeuser at fifty.)
It is also no news to you that, as economies have continued to expand globally, your clients’ legal issues have continued to grow more complex. But here is something you have probably not had to think about, until now: your client is having an affair. Only now that affair is in Denmark, where she has been living on an open-ended assignment for Starbucks. And her husband, who was living there with her up until yesterday, has found out, taken the kids, and flown back to Washington. She just called. Said someone told her something about a Hague petition. You are not really even sure how to spell Hague.
Like everything else, family law has gone global. In today’s world, it is really no stretch at all to imagine a couple born, raised, and married in Washington, but now living and operating a business in Germany, with children attending school in France, and real property or financial accounts in all three, plus London, where they had lived for a time. If that marriage is going bad, is there a best place for it to go bad? If someone grabs the kids and makes a run for it, where should he or she run? They had a wedding planner. Maybe they each need a divorce planner. And if you are looking for (or to be) that planner, what follows is an all-too brief overview of Nearly Everything Someone You Know Ought to Know About the Globalization of Family Law.
PRENUPTIAL AGREEMENTS
Often, a good divorce starts with a good prenuptial agreement. Not surprisingly, there are significant differences in the enforceability of prenuptial agreements throughout the world. Anyone practicing family law in the U.S. knows, at least anecdotally, that most U.S. states seem loathe to enforce prenuptial agreements, but will generally do so provided certain conditions are fulfilled. But many U.S. practitioners do not know that public policy has almost entirely precluded enforcement of prenuptial agreements in England since the 1920s. France, on the other hand, liberally enforces such agreements. And closer to home, every Canadian province permits prenuptial agreements.
With that in mind, family law attorneys practicing internationally often have their clients get into “mirror agreements,” which are prenuptial agreements drafted with identical terms, each referring to the laws of a different jurisdiction, and each “mirroring” the other. One such agreement, using the laws of the country most likely to enforce that agreement, is made primary. Any guess as to where the disadvantaged spouse often decides to not seek a divorce, provided he is getting good advice?
DIVORCE
Of course, every country handles divorce differently, too. When a client comes in seeking advice regarding a divorce, serious-minded multi-jurisdictional litigation requires not just determining which countries are available (generally fairly easy), but also determining which jurisdictions are most advantageous so far as a client’s major concerns are, well, concerned. Is it custody of the children? Spousal support? Division of assets? Availability of immediate temporary relief? The preferable country might change as each question is asked and answered. And if the decision is to pursue a divorce here in the U.S., forming a global strategy for our hypothetical couple above might mean seeking a state or federal receivership order and then ratification of that order in the various other jurisdictions, the idea being that the receiver can then take control of all the marital assets, including the German business, wherever those assets may be situated in world.
The globalization of family law practice also means attorneys need to know what to do with potential clients divorced in a different jurisdiction who now have enforcement issues, support issues, an upcoming wedding, and so on. The United States is not a party to the Hague Convention on the Recognition of Divorces and Legal Separations. In fact, marriage and divorce are reserved to the various states, rather than to the federal government, and there is therefore no treaty in force between the U.S. and any country on recognition of foreign divorces.
Although there is no over-arching federal law, most state courts, including Washington’s, should generally recognize any marital judgment in a foreign divorce decree. They do so under the Uniform Foreign Money-Judgments Recognition Act or the Uniform Interstate Family Support Act specifically (more on those later), and comity more generally. But that is just a general rule. There are clearly problematic divorces that raise bigger questions than just enforceability of a judgment: religious divorces, such as the “triple talaq” (the Islamic divorce practice wherein the husband simply states his wish to divorce three times), and “quickie” or “migratory” registry office and bilateral divorces, requiring only spousal consent and limited paperwork, the former filed in a local registry, the latter issued by a court. The legal effect of those divorces in any country other than the country rendering the actual divorce is difficult to determine quickly, and can later raise potentially unexpected issues, such as polygamy. Consider how interesting things can get if a Bangladeshi client, who is remarrying to a U.S. citizen, comes to see you to create a good set of mirror prenuptial agreements, only for you to begin to suspect she may not be legally divorced from her first husband. You may not have welcome news, especially if the wedding invitations have already gone out and they are meeting with the caterer tomorrow.
CHILD CUSTODY
Custody of children remains the most contentious of family law issues regardless of whether clients are the jet set or the old Chevrolet set. International litigation regarding custody plays out in three common ways: original custody determinations, international abductions, and international relocations.
When more than one jurisdiction is potentially available for rendering a divorce, what each country’s court is most likely to determine regarding original custody is a major factor for many parents. Unlike a Washington court, many foreign jurisdictions consider issues other than the best interests of the children. Japan, for instance, is notorious in its preference for Japanese parents over non-Japanese parents. And the Japanese Civil Code does not even provide visitation rights for non-custodial parents. Obviously, if your client is married to a Japanese citizen and divorce is a possibility, what might otherwise appear to be drastic steps may very well be necessary in his particular case. A similar analysis of any other jurisdiction’s child custody practices is equally critical.
As far as child abduction is concerned, in all such cases the international practitioner does well in the first instance to pour over the U.S. State Department’s website, which contains quite a bit of useful information. As far as litigation is concerned, courts in the United States routinely recognize foreign custody determinations and order the return of children to the party to whom custody was awarded in the foreign jurisdiction. Not every country feels the same way, however. Keeping with our Japanese example, Japan will not enforce U.S. court custody decisions. It provides no access to its immigration records, so the U.S. State Department is unable to confirm whether a child has entered or departed Japan. A U.S. citizen is even subject to arrest on kidnapping charges if she attempts to retrieve her child from Japan.
Perhaps the most common international child abduction litigation occurring within the U.S. at any given time involves application of the Hague Convention on the Civil Aspects of International Child Abduction, which the U.S. and numerous other countries have adopted. The Convention is intended to prevent parents from unilaterally moving children across international boundaries for the purpose of finding a more sympathetic court and to prevent harms “thought to follow when a child is taken out of the family and social environment in which its life has developed.” Here in the U.S., a Hague petition seeking the return of a child is filed in the state or federal court sitting in the jurisdiction to where the child was abducted. So, if the children of our hypothetical Starbucks executive in Denmark were now residing in Seattle, a petition would be filed either in King County Superior Court or in the U.S. District Court, Western District of Washington. In certain circumstances, the Convention would require the court to then return the children to Denmark for the Danish courts to decide custody arrangements.
Also in play in international abductions is each state’s Uniform Child Custody Jurisdiction and Enforcement Act. Washington’s UCCJEA explicitly extends the application of its provisions to the international arena and calls for recognition and enforcement of foreign custody decrees under most circumstances. Therefore, the same policies and practices that prevail in the United States with respect to custody decrees of sister-states should prevail with respect to foreign decrees.
Additionally, in the absence of (or as a supplement to) all directly applicable statutes or case law, an attorney dealing with international family law issues may, just as in many other areas of the law, look to Restatement law, specifically the Restatement Third of Foreign Relations. While the Restatement does not have the force of statutory law, it does have the prestige of scholars thinking long and hard, and it contains specific provisions for recognition and enforcement of child custody orders issued in foreign countries.
Finally, international relocations have their own problems and solutions. A client may come to the initial meeting seeking help drafting a new parenting plan, only to need advice that she should not agree to the relocation in her particular case under any circumstances. That advice, in turn, may lead to a clear need to obtain a restraining order immediately against what had been, until then, an amicable move abroad.
ENFORCEMENT OF SUPPORT JUDGMENTS AND ORDERS
Last, but certainly not least by a long shot, is enforcement of child support orders and support and other matrimonial judgments. As any attorney who has tried to collect on an attorneys’ fees judgment knows, it is one thing to have a piece of paper entitling you to something, but quite another thing altogether to actually get that something. Enforcement of orders and judgments obviously plays out in two ways: enforcement of foreign orders and judgments in the U.S., and enforcement of U.S. orders and judgments abroad.
The most common international enforcement issues for local counsel are enforcement of foreign support and matrimonial judgments. People from every corner of the world come to the U.S. not just to get their piece of the American Dream, but also to escape their financial difficulties. They bring their personal belongings as well as their personal problems: unpaid child support, unsatisfied money judgments, and unhappy ex-spouses following them with foreign decrees they want the U.S. to enforce.
As discussed briefly above, each state’s Uniform Foreign Money-Judgments Recognition Act provides a statutory basis for registration and enforcement of foreign judgments. As of 2001, thirty states (including Washington), as well as the District of Columbia and the U.S. Virgin Islands, have adopted the UFMJRA. The UFMJRA provides a streamlined process for registering a foreign family law judgment (so long as it is not support related) in Washington and thereafter acting to enforce it as though it were any other Washington judgment. Grounds for the debtor to argue for “nonrecognition” of the judgment are plentiful but narrow, involving claims like fraud and lack of jurisdiction.
Of course, collecting on spousal and child support judgments is a big issue, and support judgments are specifically excluded from the operation of the UFMJRA. Additionally, there is also the question of how to enforce an ongoing duty to provide child or spousal support (as opposed to a duty that was previously reduced to judgment) if that duty flows from a foreign support order. Happily, Washington, along with every other state, has adopted the Uniform Interstate Family Support Act, which explicitly extends its provisions beyond sister-states to the support judgments and orders of foreign countries as well, provided those countries have reciprocal arrangements with the U.S. or Washington, or have laws or procedures for issuance and enforcement of support orders substantially similar to the UIFSA procedures. And because the UIFSA allows for recognition of administrative, quasi-judicial, and judicial orders, in practice it provides wide latitude to enforce orders made in countries with very different legal systems than those in the U.S. It also allows for the imposition of a new judgment for any unpaid support to date. As with the UFMJRA, there are several defenses the obligated ex-spouse or parent may raise to contest the enforcement of the foreign support order. Just as with the UFMJRA, however, they are fairly narrow.
Finally, we turn to the enforcement of Washington orders in other countries.
Generally, one might expect that enforcement of orders abroad is more often a job given to counsel abroad, where the debtor is located. However, the underlying fairness and appropriateness of spousal and child support orders enjoys growing international recognition, and both the U.S. and individual states continue to fashion “reciprocal” agreements with other countries for the mutual enforcement of such orders. Washington alone has fashioned such agreements with nine Canadian provinces, the four UK countries, seven European countries, Australia, Fiji and Guam. Enforcement in four additional European countries becomes possible under federal reciprocal agreements. Washington’s Division of Child Support is the state agency that administers these state and federal child support agreements. DCS has a resource center to provide enforcement assistance pursuant to those agreements.
Lastly, no discussion of reciprocal agreements would be complete without noting that there are twenty-nine federally-recognized Indian tribes in Washington, which are independent sovereign governments with similar status as other states and foreign nations. Washington has reciprocal agreements with six of those tribes, and DCS assists with enforcement under those agreements as well.
Perhaps needless to say, this whirlwind tour of multi-jurisdictional family law sacrificed much nuance for the sake of brevity. Additionally, domestic relations law remains in near constant flux both here in Washington and abroad. But one thing remains a near certainty: many of your clients, whether you are a family lawyer or not, will have family law issues. And family law has gone global. Just knowing what a Washington court is likely to do in a given circumstance is only part of an ever growing, and challenging, puzzle.
Source: From attorneys who specialize in: The Globalization of Family Law
