Recognition of Foreign Divorce Decrees in New York

How Does New York Decide Whether to Recognize a Foreign Divorce?

Comity is the practice of honoring another country’s court judgments out of respect rather than legal obligation. In Greschler v. Greschler, 51 N.Y.2d 368 (1980), the Court of Appeals explained that, although not required to do so, New York courts “generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity.”

Divorces from other U.S. states are different, because the Constitution requires each state to give full faith and credit to the others’ judgments. As the Court of Appeals noted in Rosenstiel v. Rosenstiel, 16 N.Y.2d 64 (1965), there is no such constitutional compulsion for judgments of foreign nations, which are the subject of this article.

The limits on comity are narrow. A spouse who properly appeared in the foreign case generally cannot attack the judgment later unless it was obtained by fraud or recognizing it would violate a strong New York public policy (Greschler), and a departure from comity is justified “only as a rare exception,” on evidence that the particular decree resulted from “individualized fraud or coercion or oppression” or rested on policies fundamentally offensive to New York’s, Matter of Gotlib v. Ratsutsky, 83 N.Y.2d 696 (1994).

In Gotlib, the Court upheld a 1977 divorce granted in Odessa under then-Soviet law, which the wife herself had sought and attended with her husband, rejecting her claim years later that it was a sham to ease emigration. The former spouses had later lived together in Brooklyn without remarrying, and the divorce still stood.

Did Both Spouses Take Part in the Foreign Divorce?

A bilateral divorce is one in which both spouses took part in the foreign case, in person, through a lawyer, or by signing a power of attorney that authorized an appearance. New York courts generally recognize bilateral foreign divorces under comity, Bourbon v. Bourbon, 300 A.D.2d 269 (2d Dep’t 2002).

Rosenstiel shows how far that goes. A husband spent about an hour on formalities in Juárez, Mexico, and filed for divorce there, and his wife appeared through an authorized attorney and answered. Neither spouse was domiciled in Mexico, yet the Court of Appeals held that “recognition as a matter of comity offends no public policy of this State,” observing that domicile is “not intrinsically an indispensable prerequisite to jurisdiction.”

The same approach has been applied to a Dominican Republic divorce in which the wife appeared through an attorney-in-fact (Greschler), a French divorce in which the wife was represented by counsel throughout (Bourbon), and a divorce in Kyrgyzstan in which both spouses, who lived there, appeared and consented, Azim v. Saidazimova, 280 A.D.2d 566 (2d Dep’t 2001). These are New York rules; when Rosenstiel was decided, the Court noted that courts in New Jersey, New Mexico, and Ohio had refused to accept such Mexican divorces.

Where Did Each Spouse Live? Domicile and One-Sided Divorces

Domicile is a person’s true, permanent home, as opposed to a place where the person is only present for a while, and it matters most when only one spouse took part. The Second Department’s general rule is that a foreign divorce obtained on the ex parte (one-sided) petition of a spouse who was present in, but not domiciled in, the foreign country will not be recognized where the other spouse, who did not live there, neither appeared nor was served with process, Farag v. Farag, 4 A.D.3d 502 (2d Dep’t 2004).

In Farag, a husband obtained an Egyptian “Bill of Revocable Divorce” on his own. It was undisputed that he never told his wife he was traveling to Egypt to get it, and there was no evidence that he followed the proper procedures there, so the courts refused to recognize it. New York has likewise refused to recognize so-called mail-order divorces, in which neither spouse was personally present before the foreign court, as the Court of Appeals explained in Rosenstiel.

Did the Other Spouse Get Notice and a Fair Chance to Respond?

Notice and a real opportunity to be heard, often called due process, are central to whether a foreign divorce was fair to the spouse who did not seek it. A default is not always fatal, though. In Matter of Fickling v. Fickling, 210 A.D.2d 223 (2d Dep’t 1994), an Australian judgment from divorce proceedings was recognized even though the husband did not appear at trial, because he did not dispute the Australian court’s personal jurisdiction over him, he had at least constructive notice of the trial date, and there was no evidence of extrinsic fraud.

Are Religious Divorces Granted Abroad Recognized in New York?

A religious divorce is one granted under religious law, such as a Get under Jewish law. In some countries religious courts act with official authority, and New York courts judge their decrees with the same comity questions: whether both spouses took part, where they lived, and whether the other spouse had notice. They do not decide whether a divorce is valid under religious law; one court called that question “beyond the purview of this court.”

In Tal v. Tal, 158 Misc. 2d 703 (Sup. Ct., Nassau County 1993), the husband obtained a Get from a rabbinical court in New York and then a decree from the Tel Aviv-Jaffa Rabbinical Court in Israel confirming it. The wife had not lived in Israel since 1985, was not notified of the Israeli proceeding, and did not appear, so the court refused to extend comity to the Israeli decree and let her New York divorce case continue. The New York rabbinical certificate itself said the husband was free to remarry “provided he is also civilly divorced.” Tal is a trial-level decision.

Financial terms grounded in religious agreements can be recognized when a foreign court makes them part of its judgment. In Badawi v. Alesawy, 135 A.D.3d 792 (2d Dep’t 2016), the Second Department upheld recognition of the part of an Abu Dhabi divorce judgment, obtained while the couple lived there, that awarded the wife $250,000 under their mahr agreement. For how a New York civil divorce interacts with the Get, see our guide to Jewish divorce in New York.

What Happens to Property, Support, and Custody Terms?

When New York recognizes a foreign divorce, it generally recognizes the rest of the decree too, including an incorporated separation agreement, which may not be modified here “unless modification is required by reason of some compelling public policy” (Greschler). In Bourbon, the French decree set support and ordered the couple’s marital estate liquidated under their prenuptial agreement, so the wife’s claim for equitable distribution in New York was barred.

New York law also refers to proceedings for maintenance or a distribution of marital property “following a foreign judgment of divorce” (Domestic Relations Law (DRL) § 236(B)(2)(a), (5)(a)). Whether such a claim is available depends on the facts, including what the foreign court had the power to decide and actually decided.

Enforcing money terms has its own rules. Civil Practice Law and Rules (CPLR) article 54 covers only a judgment “entitled to full faith and credit” (CPLR 5401), which a foreign country’s divorce decree is not, and the statute on foreign-country money judgments excludes judgments for divorce, support, or maintenance (CPLR 5302(b)). Support orders from qualifying foreign countries may be registered for enforcement under Family Court Act article 5-B (FCA §§ 580-102, 580-601), and other terms can be pursued in a New York action to declare the foreign judgment valid and enforceable, as in Badawi.

Custody and parenting time follow separate jurisdiction rules. Get specific advice before relying on, or trying to change, custody terms in a foreign decree.

What If Divorce Cases Are Filed in Two Countries?

Timing and finality matter. In Bourbon, the wife sued in Westchester County and the husband filed in France about a week later; the Second Department first reinstated her case because the French court had issued only a temporary support order, but once the French divorce became final, it was recognized and the New York case was dismissed.

In Fouad v. Magdy, 147 A.D.3d 436 (1st Dep’t 2017), the wife filed in New York eight days before the husband sought a revocable divorce under Egyptian law. The First Department held that comity did not require dismissing her case, citing New York’s first-in-time rule, the husband’s concession that his divorce was revocable for 90 days, and his failure to submit the certification CPLR 4542(a) requires.

Do You Need a New York Divorce If You Were Divorced Abroad?

If New York recognizes the foreign divorce, you are divorced here too, and there is no marriage left to dissolve; in Gotlib, the wife’s later New York divorce case failed for that reason. If the divorce is not entitled to recognition, New York treats the marriage as continuing, and a New York divorce may be needed.

A later marriage may also be void. The Second Department has explained that if a spouse’s Dominican Republic divorce was invalid, that spouse’s second marriage would be a nullity, Steffens v. Steffens, 238 A.D.2d 404 (2d Dep’t 1997); our guide to valid, void, and voidable marriages explains the difference. When certainty matters, a court can be asked to decide: the DRL refers to actions “for a declaration of the validity or nullity of a foreign judgment of divorce” (DRL § 236(B)(2)(a)), and in Azim the Second Department directed entry of such a declaration.

How Do You Prove a Foreign Divorce in New York?

A foreign divorce is proved like other foreign official records: an attested copy with a final certification under CPLR 4542 (or an apostille for public documents from Hague Apostille Convention countries), plus an English translation with the translator’s affidavit under CPLR 2101(b). Our guide to foreign marriage recognition explains these steps. The decree should also be final and effective where it was granted, because New York will not give a foreign judgment more conclusive effect than the issuing country’s courts would (Greschler); in Bourbon, the court noted that the record showed no timely appeal from the final French ruling.

Before You Remarry or Divide Property: Practical Steps

1. Get the decree. Obtain an attested copy of the final decree and proof that it is final, such as confirmation that no appeal is pending.
2. Authenticate and translate it. Use an apostille or the CPLR 4542 chain of certifications, and an English translation with the translator’s affidavit.
3. Document participation, notice, and residence. Keep appearance records, powers of attorney, service papers, any incorporated agreement, and a record of where each spouse lived when the case was filed.
4. Get a review before acting. Have a lawyer review everything before you remarry, sign a property transfer, or rely on the decree to stop paying or seeking support. Our checklist for remarrying after a divorce covers the other steps.

Frequently Asked Questions

Does New York recognize divorces granted in other countries?

Often, yes. New York courts generally recognize foreign divorce judgments under the doctrine of comity, particularly when both spouses took part in the foreign case. A spouse who properly appeared generally cannot attack the decree later unless it was obtained by fraud or recognizing it would violate a strong New York public policy. One-sided divorces obtained without notice are treated very differently.

Will New York recognize a divorce my spouse got abroad without telling me?

Generally not, if your spouse obtained it in a country where your spouse was not domiciled, you did not live there, and you neither appeared nor were served there. The Second Department applied that rule in 2004 to an Egyptian divorce a husband obtained without telling his wife. The answer can differ if your spouse truly lived in that country.

Is a Get or other religious divorce granted abroad valid in New York?

It depends on whether the decree was a legally effective divorce where it was granted and on the same questions of participation, residence, and notice that apply to any foreign divorce. A New York trial court refused to recognize an Israeli rabbinical court decree where the wife had not lived in Israel for years and received no notice.

Can I remarry in New York after a foreign divorce?

Only if the foreign divorce ended your prior marriage as far as New York is concerned; otherwise a later marriage can be void. Before remarrying, have a lawyer review the decree, how it was obtained, and whether both spouses took part. If certainty matters, a New York court can be asked to declare whether the foreign divorce is valid.

Do I need a New York divorce if I was already divorced abroad?

Not if New York recognizes the foreign divorce, because a recognized divorce ends the marriage here as well. If it is not entitled to recognition, New York treats the marriage as continuing, and a New York divorce may be needed. Some maintenance or property issues the foreign court did not decide may be raised in New York afterward.

Recognition of a foreign divorce turns on documents and facts, so review them before you remarry, divide property, or respond to a case abroad. Joel Yacoob handles contested and high-net-worth divorces and Jewish divorce and Get matters for Neuhaus & Yacoob. You can start your case online or call (718) 975-1123; consultations are by phone or video.

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This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.