Key Questions: Is a Dominican divorce legal in the US; Is a divorce in the Dominican Republic valid in the US; Will my foreign divorce be recognized in the United States
Laws governing divorce differ across states and countries. Navigating the divorce process can be intricate, especially when dealing with cross-border situations. If you're considering getting a divorce while traveling or residing abroad, there may be concerns about the validity of your divorce upon returning to the United States. Although there are exceptions, a foreign divorce is generally recognized in the U.S., provided certain requirements are met. For expert advice on the validity of your foreign divorce, it's advisable to consult with an experienced divorce lawyer.
Keep in mind that the recognition of divorces finalized in foreign countries by the United States is subject to factors such as proper filing procedures in the couple's state of residence, and completion of any additional required documentation.
Each divorce case is unique, and the jurisdiction where the divorce is finalized may affect its validity. Moreover, some countries may have residency requirements before considering a divorce as legally binding. Failure to adhere to the regulations within the jurisdiction may result in the divorce being deemed invalid.
What should I know about the recognition of divorces in different countries?
When you've gone through a divorce in another country and are returning to the U.S., the legitimacy of your divorce relies on the principle of "comity." Comity is the legal concept that allows the U.S. to acknowledge a divorce decree made in another country.
For a foreign divorce to be valid in the U.S., both parties must have taken part in the divorce proceedings and had the chance to express themselves. Additionally, the foreign divorce must align with the public policies of the state where the couple resides.
What are the various types of foreign divorces?
In countries outside the U.S., divorces fall into four categories:
Ex Parte: These divorces are based on the presence of the petitioner in the foreign country, with notice given to the absent defendant. This is the type of divorce in the Dominican Republic known as “Quick Divorce” or “Express Divorce” where at least one of the parties must attend the court while the other may remain abroad.
In the Dominican Republic, this type of divorce is strictly reserved for non-contested filings where both parties agree to the proceedings and are given all required notices. One key piece of information is that this type of divorce in the Dominican Republic applies to marriages that were conducted in the U.S. or in a foreign country outside the Dominican Republic. There is no residency or citizenship requirement to be eligible to file for a quick divorce in the Dominican Republic.
Bilateral: In this type of divorce, both parties are physically present in the country where the divorce is granted, or it is based on the petitioner's presence while the defendant voluntarily appears through legal representation. In the Dominican Republic, this type of divorce is exist in the Dominican Republic in cased of divorce by mutual consent and in cases of divorce based on specific ground. Regardless of whether one or both parties are present in the country, it is essential that both parties be represented by an attorney at the hearing. In the Dominican Republic, laws require that the parties retain a Dominican divorce lawyer to file their petitions at the Divorce Court. Also, divorces based on specific grounds are exclusively applied to marriages formalized in the Dominican Republic.
Void: An ex parte divorce obtained without actual or constructive notice to the defendant. The court does not recognize this type of divorce. In the Dominican Republic, laws recognize the validity of divorces when filed by one of the parties residing the Dominican Republic and such party does not know the actual whereabouts of the other party. This type of divorce cases, which has been historically misused by ill-intentioned parties, is called a “Divorce notified to unknown domicile”.
For this type of divorces, applicable Dominican laws provide for a special, often lengthier, procedure where the absent party is served notice at the last known domicile or residency in the Dominican Republic or in a foreign country; and at the court that is overseeing the divorce petition. In addition, the petitioner must submit several publications in a national newspaper during a mandated set of time. Divorce cases in this category are not generally enforceable in the United States.
Practical recognition: This type of divorce may be granted when one spouse is unable to challenge the validity of the judgment in a foreign country due to unfair circumstances. In many jurisdictions, the spouse who consented to the divorce is prohibited from later disputing it based on the legal principle of "estoppel," which prevents someone from arguing against something they previously agreed to.
Why would someone consider getting divorced in another country?
There are various reasons why a couple might choose this option. Certain countries have divorce laws that enable couples to finalize their divorce much faster. For instance, in certain countries a typical divorce can be resolved overnight, while more complex cases may take just a weekend to finalize. In fact, in the Dominican Republic, if both spouses agree to file for divorce before the Dominican courts, only one spouse needs to appear in the courtroom, and the entire process can take as short as half an hour. It's important to note that due process must still be observed for the divorce to be legally valid.
In some situations, one spouse may seek a foreign divorce if the laws in a particular country are more favorable to their goals, even if it conflicts with the other spouse's goals. However, the U.S. courts consider this to be malicious intent, and any divorce obtained in another country will not be recognized or enforceable in the U.S.
What factors do the courts take into account when reviewing a Dominican divorce?
Although the courts in most states in the U.S. are not obligated to recognize a foreign divorce, they are likely to do so if it aligns with the principles of comity among nations. The court will carefully examine the case's facts to determine if the divorce terms violate the person's due process rights. The following factors are considered:
Domicile of the parties: If either spouse is a resident or citizen of the Dominican Republic where the divorce was granted, the U.S. court is likely to recognize it. However, if neither spouse was physically present in the Dominican Republic during the divorce proceedings, it will not be recognized by the U.S. courts.
Notice: According to the due process clause of the 14th amendment, the defendant spouse must receive reasonable notice of any civil action taken against them. If the application for the Dominican divorce and the hearing lacked proper notice, the court will not recognize the Dominican divorce judgment based on the doctrine of comity.
Public policy: A Dominican divorce will not be recognized if it was obtained in a manner that violates the public policy of the state where the most interested party is seeking recognition.
Fraud: If a Dominican divorce is obtained through fraudulent means, it will not be acknowledged in the U.S. The judgment can be subject to a collateral attack in a U.S. proceeding if fraud was involved in obtaining the divorce.
How does a Dominican Divorce affect child custody and support issues?
Child custody and support issues when impacted by a foreign divorce follow a process similar to that of divorce judgments. For the Dominican court's decisions on child custody and support to be recognized, they must align with the principles of comity among nations.
In many U.S. states, the court conducts a fair and thorough review of income information from both parties before ruling on enforcement applications. The court evaluates the support order issued by a Dominican Court to determine its consistency and reasonableness based on the financial status of the parties involved. Likewise, the custody order undergoes scrutiny to ensure it serves the child's best interests before enforcement. Family court judges conduct meticulous investigations, as their rulings significantly affect the child's well-being.
For non-contested divorces, a good practice to mitigate the risks of unenforceability of Dominican divorce decrees is for the spouses to sign a post-nuptial agreement (child custody, alimony, asset distribution, etc.) immediately prior to filing a divorce petition in the Dominican Republic. At Arciniegas Abogados we incorporate by reference such post-nuptial agreements in the Dominican divorce paperwork . Such strategy has proven effective in protecting either party from the consequences of a change of heart by the other party when they return to the U.S.
Risks of enforcing a Dominican Divorce in the U.S.
It is crucial that you do a proper planning before filing a divorce in the Dominican Republic. Many may be tempted by the convenience to board a flight to the Dominican Republic for a quick divorce, and to concede to the urge to “retaliate” or “castigate” the other spouse by not providing proper notice to participate in the legal proceedings in the Dominican Republic.
As a result, this denies the defendant the chance to contest the divorce if they believe the process is unjust. This is not only illegal in the Dominican Republic, but no Dominican court will admit the divorce without sufficient and convincing evidence that the spouses’ due process was preserved. Any intention to enforce a dissolution of a U.S. marriage is dead on arrival in this scenario.
At Arciniegas Abogados, we work with both parties to ensure that the process is conducted strictly following the due process in the Dominican Republic. Also, we assist our U.S. clients in preparing the proper documentation to enforce the Dominican divorce decree in their U.S. jurisdiction of residence. Our attorneys are knowledgeable of translational law, in addition to Dominican laws and have many off-counsel collaborations with legal professionals in all 50 states so you can rest assure that if contested, you can rely on your divorce validity to stay protected.
Final thoughts on Recognition of Dominican Divorces in the U.S.
Dominican divorces generally face disapproval in the United States. Unless both parties were residents of the Dominican Republic before the divorce, a U.S. court is not obligated to grant "comity" - blindly acknowledging the foreign decree. Most jurisdictions will prevent the spouse who consented to the divorce from challenging it later based on the principle of fairness known as "estoppel". Since both parties consented to the divorce, there is no one left to challenge it. As a result, it is crucial to maintain indefinite evidence of the non-appearing spouse's consent, as significant rights may depend on a reviewing court's assessment of that consent.
New York is among the few states that recognize bilateral Dominican divorces (Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709, 262 N.Y.S.2d 86 [1965]). In New York, both parties must participate in the divorce, including the written consent of the non-appearing spouse, and one party must physically travel and appear in person before the court in the Dominican Republic.
Many other state courts have declared invalid foreign divorces where both parties participate in the proceedings but do not establish domicile. This viewpoint is followed in Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978); Everett v. Everett, 345 So. 2d 586 (La. Ct. App. 1977); Kugler v. Haitian Tours, Inc., 120 N.J. Super. 260, 293 A.2d 706 (1972); Estate of Steffke v. Wisconsin Department of Revenue, 65 Wis.2d 199, 222 N.W.2d 628 (1974); Commonwealth v. Doughty, 187 Pa. Super. 499, 144 A.2d 521 (1958); Bobala v. Bobala, 68 Ohio App. 63, 33 N.E.2d 845 (1940); Golden v. Golden, 41 N.M. 356, 68 P.2d 928 (1937). Furthermore, this principle is legislated in six states - California, Nebraska, New Hampshire, North Dakota, South Carolina, and Wisconsin - through the Uniform Divorce Recognition Act, 9A U.L.A. 461 (Supp. 1965). This act explicitly denies recognition of a divorce obtained in another jurisdiction when both spouses were residents of the home state.
The recognition of a Dominican divorce in a foreign jurisdiction, such as the United States, is subject to the laws of that jurisdiction. Given the significance and legal implications of these rights, it is crucial to engage the services of a capable attorney. It is strongly advised against pursuing divorces from services that offer "mail order" or non-appearance divorces, as these are invalid throughout the United States.
If you are a U.S. resident considering a divorce in the Dominican Republic and wish to ensure its validity in your home state, get in touch with our team of divorce lawyers at Arciniegas Abogados. Call us today at 888-537-3379 (toll-free for U.S. and Canada) or 809-549-3031 for a confidential consultation. Alternatively, you can reach us online through our contact section. Based in Santo Domingo, we cater to clients all across the Dominican Republic, including Punta Cana, La Romana, Puerto Plata, and Samana.
The blogs posted by Arciniegas Abogados, Attorneys at Law are intended solely for informational purposes and should not be regarded as legal advice on any subject. It is important to note that reading these blogs does not establish an attorney-client relationship with the blog publisher. Instead of relying on the blogs as a substitute for legal advice, it is highly recommended that readers seek the guidance of a licensed attorney to address their specific legal questions or concerns in any given situation.
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