4. — Divorce jurisdiction litigation when there is a foreign-
country element.
— Securing stays of domestic divorce actions because of the
pendency of foreign-country cases.
— Securing recognition in U.S. of foreign-country divorce
decrees.
— Enforcement of foreign-country divorce decrees in the
U.S.
International pre / post nuptial agreement planning and drafting.
International postnuptial agreement planning and drafting.
International child support issues
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15. Continuing jurisdiction overseas?
Mirror order?
Bond
Legal fees in escrow
Law enforcement language
Effect of criminal sanctions
Condon case in California
The conditions that courts have imposed in an effort to ensure compliance
with its current and future orders in international relocation cases include:
Requiring the relocating parent to:
Post a substantial financial bond in a specific amount sufficient to ensure
compliance with the court’s judgment and orders;
Consent to the court’s continuing jurisdiction over the child (and in some
cases re-file such consent annually;
Agree to a prohibition against attempting to modify the judgment in an
overseas court;
Agree that any attempt by such parent to modify the judgment by application
to any foreign court could be deemed a violation of the court’s judgment and
grounds for forfeiture of the bond and other appropriate sanctions;
Register the trial court’s judgment with the proper overseas authorities (and,
in some cases, re-register the judgment annually);
Obtain an order from the court in the country to which the relocating parent
is moving that mirrors the terms of the forum court’s order, that
acknowledges that the forum court has continuing exclusive jurisdiction
concerning all matters as to the child’s custody and visitation, and that
requires the appropriate authorities to enforce such orders;
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16. Refrain from taking the child to the foreign country until the judgment was
registered and until the trial court has made a further determination that the
relocating parent has fully complied with the court’s judgment;
Waive extradition if an arrest warrant is issued for parental kidnapping under
the federal international child kidnapping statute (18 US Code Sec 1204);
Deposit support payments in a trust fund to finance travel for visitation, and
perhaps for attorney fees in seeking enforcement of the orders.
Awarding legal custody jointly to the father and mother, while giving
primary physical custody to the mother, in order to ensure that the non-
relocating father had rights of custody for purposes of the Hague Abduction
Convention;
Ordering that support payments will be forfeited in the event of non-
compliance; and
Imposing a severe financial penalty on the relocating parent if she fails to
comply with the order.
In addition, courts have provided for many methods of shaping custody
orders so as to alleviate the disruption of contact between the internationally
relocating child and the left-behind parent and to maintain the relocating
child’s language skills and cultural connections to the United States. Such
provisions have included:
Providing longer periods of visitation during school breaks as compensation
for the loss of more frequent visitation;
Requiring the relocating parent to pay the costs of the child's travel back to
the United States and for the left-behind parent’s travel to the foreign
country.
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17. Requiring the relocating parent to arrange for an adult to accompany the
child during travel;
Requiring the relocating parent to arrange for the use of technological
services such as the internet and videoconferencing to enhance contact with
the left-behind parent, and to pay for the necessary equipment;
Requiring daily internet contact with webcams; and
Requiring the relocating parent to enrol the child in an English speaking
school accredited in the United States.
Averbuch v. Strekovsky, 2008 WL 5063831 (Cal.App. 2 Dist.,2008); Ish-
Shalom v Wittmann 19 AD3d 493, 797 NYS2d 111 (2d Dept 2005).
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18. International Prenuptial Agreements
“I’m Romanian with a green card.
I have houses in New York, Florida,
Vienna and Moscow.
She’s Russian in London.
I have appointments in New York,
Hungary, Germany, Brazil and England.”
“He just wants a very simple prenup
that is completely guaranteed to be
effective wherever he lives.”
• Choice of Law
• Choice of Court
• Recognition
“Oh, by the way, she’s also
pregnant. Make sure he’ll have • P. T. A.
custody.”
International Prenuptial Agreements
Complexities are greatly magnified when the clients are international.
Lawyers must consider the impact of the different laws of the various
jurisdictions with which the parties are connected or are likely to become
connected.
They must work with international counsel who have sophistication and
experience in handling international prenuptial agreements and who can
bring in appropriate local counsel in selected jurisdictions relevant to the
issues that the clients has raised or should have raised.
Propose a "home" for the prenuptial agreement. Perhaps not where the
lawyer practices.
"Choice of law" clauses are common in the United States and they are
usually upheld there, IF significant connection and no public policy
violation.
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19. "Choice of court" clauses are also a common feature of US prenuptial
agreements. While they can usually not oust a court's jurisdiction they may
be useful in persuading a court that it should accept a case that is brought in
the jurisdiction selected by the parties or that it should decline a case brought
in another jurisdiction.
"Shopping" for a suitable law and forum is not only appropriate but it may
well be good practice - and some might argue that it is even an essential
practice - whenever one represents an internationally-connected client with
significant current or anticipated assets who wants to maximize the chances
that such an agreement will enforced and/or who wants to include terms that
might fall foul of a fairness test but which would more likely survive a test
based on unconscionability.
Lawyers cannot guarantee the enforceability of pre- or post-nuptial
agreements to clients, but they should steer clients to jurisdictions that are
more likely to satisfy their goals.
For example, New York's public policy is to promote the resolution of issues
between spouses by means of prenuptial and postnuptial agreements. That
policy is reflected in a host of decisions from the New York courts
upholding such agreements, including agreements that might well not be
enforced in other jurisdictions.
For that reason counsel representing a client who has (or whose spouse-to-be
has) a New York connection - whether based on current, prior or
contemplated residency, current, prior or contemplated employment or other
factors - should consider recommending that the parties make an express
choice of New York law to govern their agreement.
Indeed, if such a choice is made, counsel might perhaps suggest that such a
client should enhance the connections with New York by signing the
agreement in that state and/or entering into the civil marriage there (even if
the marriage festivity occurs elsewhere).
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20. Since an English court might not enforce such an agreement, although very
many jurisdictions around the world would do so, one might recommend
that the parties should enter into two separate prenuptial agreements.
One would be drafted with a view to English law and would apply only if
the "stronger" foreign-oriented agreement were invalidated, either in whole
or in significant part.
Alternatively the agreements could provide that the "weaker" agreement
would apply only if the financial issues were resolved in England while the
"stronger" agreement would have priority if the financial issues were
resolved elsewhere.
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22. The difference between one divorce jurisdiction and another is far more than
between a soccer team playing at home or playing away. It is about playing one
game at home and a totally different game with totally different rules away.
Indeed, the analogy to a game is not inappropriate. Any serious competitor
plays a competitive game strategically. Is the process of divorce any less serious
than that?
Yet very few people do their homework on these critical issues at a time
when it could really make a big difference. They simply assume that wherever they
live is necessarily the jurisdiction in which they must sue or be sued. They walk in
blind to what may be the most significant financial transaction of their life.
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