The document discusses several key points regarding international family law:
1. There is no international family law - family law issues are governed by local laws.
2. The Hague Abduction Convention is the most important international treaty, dealing with international child abduction.
3. International family lawyers must work closely with local counsel in different countries due to the local nature of family law.
4. Issues that frequently arise include international child abduction, child custody, international divorce jurisdiction, and recognition of foreign divorce decrees. Strategic planning is important to achieve the most favorable outcomes.
Protections and Care for Asylum-Seeking Children in the USDavid Rothenberg
This document discusses protections and care for asylum-seeking children in the US immigration system. It outlines how children often face detention in prison-like conditions and lack access to proper legal services. While reforms have improved conditions, more are still needed to uphold international laws regarding undocumented children. The document also examines the history of US immigration laws and policies impacting children, challenges children face in the legal process, and the Special Immigrant Juvenile Status program providing relief to abused/neglected children.
Hear how the passing of the Dream Act impacts our students in Illinois, Updates on FAFSA from ISAC as well as what fast track applications are all about.
Aliza Gilbert, Counselor – Highland Park High School; Co-Developer of the College Advising Guide for Undocumented Students
Sam Nelson – ISAC
CGRS and Kids in Need of Defense (KIND) have collaborated to produce an important report urging lawmakers to reform the U.S. immigration system for migrant children who are coming to our borders with surging frequency. They come, often unaccompanied by an adult, in search of safety, stability, and protection. These children face a system that was created for adults, does not provide them legal counsel, and is not required to consider the child’s best interests, despite the potentially enormous impact of the proceedings on the child’s life and future.
Parental Kidnapping and Custody Issues PresentationReina
The document summarizes information presented by various members of Group 5 on the topic of parental kidnapping. It discusses definitions and laws related to parental kidnapping, statistics on parental kidnapping cases nationally and internationally, the economic impacts and psychological effects on children, and intervention steps and resources available. Key presenters included Scott Church on definitions and laws, Albandari Alrayes on statistics, Jake Discrol on economic impacts, Megan Griffith and Amanda on psychological effects, and Reina Connolly on intervention resources.
This document provides a chronological chart of events in a legal case involving Vogel Denise Newsome against Entergy New Orleans, Entergy Services, and other entities. Some key details include:
- Newsome first learned of Baker Donelson law firm's involvement in 1999 when they were brought in to represent Entergy due to their relationships with judges.
- Newsome filed various lawsuits and complaints over the years regarding harassment, kidnapping, and other criminal acts by individuals and groups allegedly working with or on behalf of Baker Donelson.
- Newsome had issues with multiple attorneys withdrawing from representing her without permission or apparent coercion by Baker Donelson.
- Judges involved in Newsome
Brown V Board Implementation, Challenges and EfectsGeneva Walker
Brown v. Board of Education was a landmark 1954 Supreme Court case that ruled racial segregation in public schools to be unconstitutional. Implementation of desegregation was slow and faced significant resistance. By the late 1960s and 1970s, additional court rulings and legislation supported mandatory busing and race-based student assignments to achieve integration, though this faced opposition from white flight and segregation in housing patterns. Desegregation efforts had some success in reducing segregation, but progress stalled and even partially reversed in some areas by the 1990s.
The increasing frequency and costs of adoption lawsuits are causing problems for adoption agencies. Misrepresentations about children's backgrounds and medical histories are common causes of these lawsuits. Incidents of abuse in overseas orphanages are also a major issue, especially in Ethiopia. Standards and controls over inter-country adoptions need improvement to address the root causes that have allowed these problems to occur. Adoption agencies can take steps to strengthen documentation, contracts, education, and verification processes to help fix these issues.
Protections and Care for Asylum-Seeking Children in the USDavid Rothenberg
This document discusses protections and care for asylum-seeking children in the US immigration system. It outlines how children often face detention in prison-like conditions and lack access to proper legal services. While reforms have improved conditions, more are still needed to uphold international laws regarding undocumented children. The document also examines the history of US immigration laws and policies impacting children, challenges children face in the legal process, and the Special Immigrant Juvenile Status program providing relief to abused/neglected children.
Hear how the passing of the Dream Act impacts our students in Illinois, Updates on FAFSA from ISAC as well as what fast track applications are all about.
Aliza Gilbert, Counselor – Highland Park High School; Co-Developer of the College Advising Guide for Undocumented Students
Sam Nelson – ISAC
CGRS and Kids in Need of Defense (KIND) have collaborated to produce an important report urging lawmakers to reform the U.S. immigration system for migrant children who are coming to our borders with surging frequency. They come, often unaccompanied by an adult, in search of safety, stability, and protection. These children face a system that was created for adults, does not provide them legal counsel, and is not required to consider the child’s best interests, despite the potentially enormous impact of the proceedings on the child’s life and future.
Parental Kidnapping and Custody Issues PresentationReina
The document summarizes information presented by various members of Group 5 on the topic of parental kidnapping. It discusses definitions and laws related to parental kidnapping, statistics on parental kidnapping cases nationally and internationally, the economic impacts and psychological effects on children, and intervention steps and resources available. Key presenters included Scott Church on definitions and laws, Albandari Alrayes on statistics, Jake Discrol on economic impacts, Megan Griffith and Amanda on psychological effects, and Reina Connolly on intervention resources.
This document provides a chronological chart of events in a legal case involving Vogel Denise Newsome against Entergy New Orleans, Entergy Services, and other entities. Some key details include:
- Newsome first learned of Baker Donelson law firm's involvement in 1999 when they were brought in to represent Entergy due to their relationships with judges.
- Newsome filed various lawsuits and complaints over the years regarding harassment, kidnapping, and other criminal acts by individuals and groups allegedly working with or on behalf of Baker Donelson.
- Newsome had issues with multiple attorneys withdrawing from representing her without permission or apparent coercion by Baker Donelson.
- Judges involved in Newsome
Brown V Board Implementation, Challenges and EfectsGeneva Walker
Brown v. Board of Education was a landmark 1954 Supreme Court case that ruled racial segregation in public schools to be unconstitutional. Implementation of desegregation was slow and faced significant resistance. By the late 1960s and 1970s, additional court rulings and legislation supported mandatory busing and race-based student assignments to achieve integration, though this faced opposition from white flight and segregation in housing patterns. Desegregation efforts had some success in reducing segregation, but progress stalled and even partially reversed in some areas by the 1990s.
The increasing frequency and costs of adoption lawsuits are causing problems for adoption agencies. Misrepresentations about children's backgrounds and medical histories are common causes of these lawsuits. Incidents of abuse in overseas orphanages are also a major issue, especially in Ethiopia. Standards and controls over inter-country adoptions need improvement to address the root causes that have allowed these problems to occur. Adoption agencies can take steps to strengthen documentation, contracts, education, and verification processes to help fix these issues.
This document discusses inter-country adoption, including its background and growth over time. It notes that over 2.6 lakh Indian babies have been placed in inter-country adoptions in the past 3 decades. While providing children with families and opportunities, inter-country adoption also faces issues like child trafficking and a lack of regulation. The document calls for effective steps and international cooperation to ensure children's best interests and prevent illegal activities like sale and trafficking.
Hague Convention on International Child Abduction, 1980AayushiPandey48
The Hague Convention on the Civil Aspects of International Child Abduction aims to ensure the prompt return of children who have been internationally abducted. It provides for the return of children who have been taken from their country of habitual residence or wrongfully retained in another country. However, return may be refused under certain defenses, such as if it poses a grave risk of harm to the child. While most countries are signatories, India has not ratified the convention due to concerns about protecting mothers who return to India with children to escape domestic abuse. Courts in India still aim to consider the welfare and best interests of children in such cases.
This document summarizes a chapter about parenthood from a family law textbook. It outlines learning objectives on topics related to determining legal parentage, such as the parties involved in parentage cases, how parentage is typically established, adjudicating paternity, addressing issues like fraud and new reproductive technologies, and the role of paralegals in parentage cases.
Dna daddy a quest for legitimacy in indian lawIndianScholars
- Rohit Shekhar filed a paternity suit against N.D. Tiwari in 2007 claiming he was his biological father. After years of legal battles, the Supreme Court ordered a DNA test in 2012.
- The DNA test results confirmed that N.D. Tiwari was the biological father of Rohit Shekhar. This case highlighted issues with Section 112 of Indian evidence law regarding legitimacy of children and raised questions about recognizing both social and biological fathers.
- It also sparked debates around guidelines for DNA testing in India, incorporating DNA evidence into law, and implications of recognizing live-in relationships and biological parents on legal rights like inheritance. The case underscored the need for DNA legislation in India
Immigration consequences of criminal activity by f1 and j1 scholarsnafsaregion12
The document summarizes information regarding criminal consequences for international students, including inadmissibility, removability, maintaining status, reporting requirements, common offenses, criminal procedures, and campus perspectives. It discusses interactions with law enforcement, the courts, and immigration authorities.
Leonardo Mongillo — Getting to Know the Divorce Process in the United States....Leonardo Mongillo
Divorce is a complex and emotional process that many individuals may find themselves going through at some point in their lives. In the United States, the legal procedures and outcomes of divorce can vary from state to state. Understanding the steps involved and the potential outcomes can help individuals navigate this challenging journey with more clarity and confidence. This blog aims to provide a comprehensive overview of the divorce process in the United States, along with the different kinds of outcomes that can be expected. Leonardo Mongillo discusses The Pivotal Role of Your Family Lawyer and Their Team In Cruising Through Your Domestic Issues
This document provides an overview of legal issues related to domestic violence and child custody. It discusses how custody and visitation arrangements can inadvertently subject abused women and children to further harm. The document notes that batterers frequently seek custody to maintain control over their victims. It also discusses common myths about domestic violence and child custody, and notes that custody decisions should consider how living with a batterer impacts safety and the best interests of the child. The resource contains tips, summaries of state laws, and additional resources on this topic.
Ensuring Ethical Practice in Child Adoption: A Guide for Legislators, Pract...Mirah Riben
Everyone assumes adoption is in the best interest of children. Is it? In whose best interest are fraudulent birth certificates? Are there sufficient regulations and enforceable guidelines in place to eliminate corruption, commodification, exploitation, coercion and conflict of interest? How much does money play a part?
Discussion of ethical issues with a focus on payments of expenses and conflict of interest in legal counsel for relinquishing mothers within the U.S. Suggested solutions to prevent scamming of prospective adopters and coercion expectant mothers which can cause contested adoptions which are lengthy and costly for all parties.
Ensuring Ethical Practice in Child Adoption: A Guide for Legislators, Prac...Mirah Riben
Everyone assumes adoption is in the best interest of children. Is it? In whose best interest are fraudulent birth certificates? Are there sufficient regulations and enforceable guidelines in place to eliminate corruption, commodification, exploitation, coercion and conflict of interest? How much does money play a part?
Discussion of ethical issues with a focus on payments of expenses and conflict of interest in legal counsel for relinquishing mothers within the U.S. Suggested solutions to prevent scamming of prospective adopters and coercion expectant mothers which can cause contested adoptions which are lengthy and costly for all parties.
Child abuse occurs worldwide and takes many forms including physical, emotional, and sexual abuse as well as neglect. It has long-lasting negative effects on children's development and mental health. While many cases go unreported, addressing child abuse requires awareness of warning signs, ensuring children's basic needs are met, and creating a support system to protect them. Some jurisdictions have had success eliminating child abuse through community intervention and policy changes.
Child abuse occurs worldwide and takes many forms, including physical, emotional, and sexual abuse as well as neglect. It has long-lasting negative effects on children's development and mental health. While many cases go unreported, addressing child abuse requires awareness of warning signs, ensuring children's basic needs are met, and creating a support system to protect them. Some jurisdictions have had success eliminating child abuse through community intervention and policy changes.
This document provides guidance on how to win child custody battles. It discusses preparing for child custody trials by keeping detailed records of parenting activities and a child's development. It also discusses getting character witnesses and documenting any issues with the other parent, like lack of involvement, failure to provide support, abuse, or instability. Maintaining medical records, attending school activities, and spending quality time with children are recommended. Father's rights in custody battles have increased over time but mothers still tend to be favored, though the goal should be determining the better parent regardless of gender. Child psychologists provide input to determine the child's best interests in custody decisions.
The document summarizes a study on the legal needs of American families. Some key findings include: 57 million Americans faced at least one significant legal issue in the past year but only 60% sought lawyer help; common issues included auto accidents, family matters, and estate planning; and most Americans avoid lawyers due to high costs, difficulty reaching lawyers by phone, and a belief that lawyers will take advantage of them. The study suggests that legal service plans could help make legal assistance more affordable and accessible.
The document summarizes a study on the legal needs of American families. Some key findings include: 57 million Americans faced at least one significant legal issue in the past year but only 60% sought lawyer help; common issues included auto accidents, family matters, and estate planning; and most Americans avoid lawyer help due to high costs, access issues, and lack of trust in lawyers. The study suggests that legal service plans could help make affordable legal assistance more accessible.
Assessment and Treatment of Young Offenders Personal NotesPsychology2010
The document summarizes key topics related to juvenile offenders:
1) It outlines the history of laws governing juvenile offenders in Canada, from the 1908 Juvenile Delinquents Act to the modern Youth Criminal Justice Act.
2) Common behavioral disorders seen in young offenders are discussed, including ADHD, ODD, and Conduct Disorder. Risk factors like early age of onset are also examined.
3) Theories of antisocial behavior include biological factors like abnormalities in the frontal lobe and lower resting heart rate as potential contributors to criminal tendencies.
This document discusses inter-country adoption, including its background and growth over time. It notes that over 2.6 lakh Indian babies have been placed in inter-country adoptions in the past 3 decades. While providing children with families and opportunities, inter-country adoption also faces issues like child trafficking and a lack of regulation. The document calls for effective steps and international cooperation to ensure children's best interests and prevent illegal activities like sale and trafficking.
Hague Convention on International Child Abduction, 1980AayushiPandey48
The Hague Convention on the Civil Aspects of International Child Abduction aims to ensure the prompt return of children who have been internationally abducted. It provides for the return of children who have been taken from their country of habitual residence or wrongfully retained in another country. However, return may be refused under certain defenses, such as if it poses a grave risk of harm to the child. While most countries are signatories, India has not ratified the convention due to concerns about protecting mothers who return to India with children to escape domestic abuse. Courts in India still aim to consider the welfare and best interests of children in such cases.
This document summarizes a chapter about parenthood from a family law textbook. It outlines learning objectives on topics related to determining legal parentage, such as the parties involved in parentage cases, how parentage is typically established, adjudicating paternity, addressing issues like fraud and new reproductive technologies, and the role of paralegals in parentage cases.
Dna daddy a quest for legitimacy in indian lawIndianScholars
- Rohit Shekhar filed a paternity suit against N.D. Tiwari in 2007 claiming he was his biological father. After years of legal battles, the Supreme Court ordered a DNA test in 2012.
- The DNA test results confirmed that N.D. Tiwari was the biological father of Rohit Shekhar. This case highlighted issues with Section 112 of Indian evidence law regarding legitimacy of children and raised questions about recognizing both social and biological fathers.
- It also sparked debates around guidelines for DNA testing in India, incorporating DNA evidence into law, and implications of recognizing live-in relationships and biological parents on legal rights like inheritance. The case underscored the need for DNA legislation in India
Immigration consequences of criminal activity by f1 and j1 scholarsnafsaregion12
The document summarizes information regarding criminal consequences for international students, including inadmissibility, removability, maintaining status, reporting requirements, common offenses, criminal procedures, and campus perspectives. It discusses interactions with law enforcement, the courts, and immigration authorities.
Leonardo Mongillo — Getting to Know the Divorce Process in the United States....Leonardo Mongillo
Divorce is a complex and emotional process that many individuals may find themselves going through at some point in their lives. In the United States, the legal procedures and outcomes of divorce can vary from state to state. Understanding the steps involved and the potential outcomes can help individuals navigate this challenging journey with more clarity and confidence. This blog aims to provide a comprehensive overview of the divorce process in the United States, along with the different kinds of outcomes that can be expected. Leonardo Mongillo discusses The Pivotal Role of Your Family Lawyer and Their Team In Cruising Through Your Domestic Issues
This document provides an overview of legal issues related to domestic violence and child custody. It discusses how custody and visitation arrangements can inadvertently subject abused women and children to further harm. The document notes that batterers frequently seek custody to maintain control over their victims. It also discusses common myths about domestic violence and child custody, and notes that custody decisions should consider how living with a batterer impacts safety and the best interests of the child. The resource contains tips, summaries of state laws, and additional resources on this topic.
Ensuring Ethical Practice in Child Adoption: A Guide for Legislators, Pract...Mirah Riben
Everyone assumes adoption is in the best interest of children. Is it? In whose best interest are fraudulent birth certificates? Are there sufficient regulations and enforceable guidelines in place to eliminate corruption, commodification, exploitation, coercion and conflict of interest? How much does money play a part?
Discussion of ethical issues with a focus on payments of expenses and conflict of interest in legal counsel for relinquishing mothers within the U.S. Suggested solutions to prevent scamming of prospective adopters and coercion expectant mothers which can cause contested adoptions which are lengthy and costly for all parties.
Ensuring Ethical Practice in Child Adoption: A Guide for Legislators, Prac...Mirah Riben
Everyone assumes adoption is in the best interest of children. Is it? In whose best interest are fraudulent birth certificates? Are there sufficient regulations and enforceable guidelines in place to eliminate corruption, commodification, exploitation, coercion and conflict of interest? How much does money play a part?
Discussion of ethical issues with a focus on payments of expenses and conflict of interest in legal counsel for relinquishing mothers within the U.S. Suggested solutions to prevent scamming of prospective adopters and coercion expectant mothers which can cause contested adoptions which are lengthy and costly for all parties.
Child abuse occurs worldwide and takes many forms including physical, emotional, and sexual abuse as well as neglect. It has long-lasting negative effects on children's development and mental health. While many cases go unreported, addressing child abuse requires awareness of warning signs, ensuring children's basic needs are met, and creating a support system to protect them. Some jurisdictions have had success eliminating child abuse through community intervention and policy changes.
Child abuse occurs worldwide and takes many forms, including physical, emotional, and sexual abuse as well as neglect. It has long-lasting negative effects on children's development and mental health. While many cases go unreported, addressing child abuse requires awareness of warning signs, ensuring children's basic needs are met, and creating a support system to protect them. Some jurisdictions have had success eliminating child abuse through community intervention and policy changes.
This document provides guidance on how to win child custody battles. It discusses preparing for child custody trials by keeping detailed records of parenting activities and a child's development. It also discusses getting character witnesses and documenting any issues with the other parent, like lack of involvement, failure to provide support, abuse, or instability. Maintaining medical records, attending school activities, and spending quality time with children are recommended. Father's rights in custody battles have increased over time but mothers still tend to be favored, though the goal should be determining the better parent regardless of gender. Child psychologists provide input to determine the child's best interests in custody decisions.
The document summarizes a study on the legal needs of American families. Some key findings include: 57 million Americans faced at least one significant legal issue in the past year but only 60% sought lawyer help; common issues included auto accidents, family matters, and estate planning; and most Americans avoid lawyers due to high costs, difficulty reaching lawyers by phone, and a belief that lawyers will take advantage of them. The study suggests that legal service plans could help make legal assistance more affordable and accessible.
The document summarizes a study on the legal needs of American families. Some key findings include: 57 million Americans faced at least one significant legal issue in the past year but only 60% sought lawyer help; common issues included auto accidents, family matters, and estate planning; and most Americans avoid lawyer help due to high costs, access issues, and lack of trust in lawyers. The study suggests that legal service plans could help make affordable legal assistance more accessible.
Assessment and Treatment of Young Offenders Personal NotesPsychology2010
The document summarizes key topics related to juvenile offenders:
1) It outlines the history of laws governing juvenile offenders in Canada, from the 1908 Juvenile Delinquents Act to the modern Youth Criminal Justice Act.
2) Common behavioral disorders seen in young offenders are discussed, including ADHD, ODD, and Conduct Disorder. Risk factors like early age of onset are also examined.
3) Theories of antisocial behavior include biological factors like abnormalities in the frontal lobe and lower resting heart rate as potential contributors to criminal tendencies.
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
4
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;
15
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.
16
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).
17
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.
18
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).
19
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.
20
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.
22