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.
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
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?
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.
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
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.