International Divorce in Arizona
Many attorneys indicate they understand the complexities of an international divorce in Arizona, yet many of those Arizona divorce attorneys provide little to no actual information about the difference between a simple divorce in Arizona from a simultaneous divorce in Arizona and a divorce occurring in another country. Not understanding the specific complexities involved in simultaneous divorce proceedings in different countries can be devastating to the outcome of your divorce in Arizona and abroad. We are providing a series of articles explaining what you need to know to address an international divorce in Arizona.
An attorney must be familiar with the laws and statutes that govern divorce in Arizona. The same attorney, however, must have an understanding of the various international treaties, such as the Hague Convention Treaty, to understand how he or she can serve the divorce papers in another country, how to accumulate evidence in another country, and other factors.
Jurisdiction and Authority of the Court in Arizona
In Arizona, a court must have what is referred to as personal jurisdiction and subject matter jurisdiction over the parties and the issues in the divorce. However, a court only needs subject matter jurisdiction over just one spouse and over the children of the parties, if Arizona has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Personal jurisdiction is required by the Arizona and United States Constitutions pursuant to the Due Process Clase. This means that a person must have sufficient minimum contacts with the State of Arizona to make it fair for him or her to have to defend a divorce in Arizona. Arizona can obtain personal jurisdiction over a person even if they do not have minimum contacts in Arizona if they are served while visiting the state. However, some countries may not recognize such service as valid and, therefore, not recognize as valid any Arizona divorce orders entered here.
Simultaneous Proceedings in Another Country
What happens when a divorce is occurring in Arizona and another country at the same time? The legal principle of comity may be applied by an Arizona divorce court to provide for enforcement of a foreign court’s divorce decree. To be eligible for comity to apply, the proponent seeking to enforce the foreign court’s divorce decree must establish the validity of the divorce decree and that substantial notions of due process existed to enter the decree, which means the spouse received proper service of process, due process, and the foreign country had personal jurisdiction over the spouse and subject matter jurisdiction over the issues in the case.
However, there is a court of appeals decision from the State of New York wherein the appellate court upheld the New York divorce court’s dismissal of a pending divorce because of the entry of a final divorce decree issued in another country based upon comity, collateral estoppel, and res judicata. One thing you can do to prevent this from happening to you is to seek an injunction from the Arizona court prohibiting the other spouse from proceeding with the litigation in the foreign court.
The Doctrine of Forum Non-Conveniens in International Child Custody Cases
An Arizona court and, perhaps, a foreign country’s divorce court may dismiss one of the competing divorce cases on the theory of Forum Non-Convieniens. This simply means one of the spouses to the divorce files a motion to discuss that divorce case because another court, such as an Arizona divorce court, provides a more convenient court to litigate the issues in the divorce.
Call the experienced Phoenix and Scottsdale Arizona divorce attorneys at Hildebrand Law, PC at (480)305-8300 if you are facing an international divorce in Arizona.