For example, where there is a continuing support obligation, the obligor or obligee may live or move abroad, and enforcement or modification can be a problem to resolve. The validity of divorce court judgments or settlements in the U.S. may be challenged in a foreign court. Assets to be divided may be situated abroad, a party may have a pension from a foreign- based corporation or a party may have set up offshore trusts and other entities to prevent the forum court from gaining jurisdiction over the assets therein. Also, a party may have hidden funds in a bank in a country with allegedly unbreakable privacy laws. These are some of the transnational issues capable of arising in family law cases.

It is important for your attorney to be aware of the potential of a serious international element arising in any given case. The particular circumstances of your case may require that in a final custody order there be restrictions on passports, and visitation. There are also measures one can take, that may prevent the abduction of children abroad if that is of concern in your matter.

The following is a short list of international issues.

Divorce

• Obtaining personal jurisdiction in a U.S. divorce case of spouse resident overseas.
• Obtaining personal jurisdiction in a foreign divorce case of spouse resident in the U.S.
• Recognition and enforcement of a U.S. divorce judgment in a foreign country.
• Recognition and enforcement in the U.S. of a foreign divorce judgment.
• Methods for obtaining evidence located abroad and proving its admissibility in a U.S. divorce case.
• Verifying validity of evidence located in the U.S. in a foreign divorce case.
• Establishing validity or invalidity of U.S. divorce judgment in foreign court.
• Establishing validity or invalidity of foreign divorce judgment in a U.S. court.
• Jurisdiction over property in US court when all parties are overseas.
• Establishment of jurisdiction through domicile, residency or nationality.
• Basis for choosing between filing for divorce in foreign, religious or civil court.
• Basis for choosing in which country to file for divorce where option available.
• Grounds for opposing each of the foregoing procedures.
• Interfacing international family law issues with immigration, visa, and nationality issues.

Marriage

• Recognition and non-recognition of a foreign marriage in a U.S. court.
• Recognition and non-recognition of a U.S. marriage in a foreign court.
• Establishing bigamous U.S. marriage in a foreign court.
• Establishing bigamous foreign marriage in a U.S. court.
• Utilizing Hague Convention on Recognition of Marriage.

Support

• Establishing and enforcing support orders in a foreign country.
• Recognizing and enforcing a U.S. support order against an obligor living in a foreign country.
• Establishing and enforcing a foreign support order against an obligor living in the U.S.
• Registering and enforcing a foreign support order against an obligor living in the U.S.
• Utilizing parallel reciprocal declarations between a U.S. jurisdiction and a foreign country to establish or enforce support orders.
• Utilizing foreign garnishments, attachments and other foreign procedures to collect support.
• Using the Uniform Foreign Country Money Judgment Act to collect support in US.
• Using the 1956 U.N. Convention on Recovery of Maintenance Abroad to collect support in US.
• Using US statute which permits a foreign country to become fully reciprocal with US to enforce each other’s validly issued support orders.
• Defending against any of the above actions.
• The Hague Conference has adopted a new Convention on the recovery of support between member countries. It has not yet been ratified by the US.
• Dealing with the effect of changes in currency exchange rates on support payments to or from a foreign country. Resolving different methods of computing support between obligor’s country and country of residence of child or of other parent.
• Choosing between filing support case in religious or civil court in foreign country.
• Choosing most appropriate method for transmitting support funds to or from a foreign country: hand delivered or mailed cash, international money order, or personal, cashier’s or certified check drawn on a U.S. bank or a foreign bank; hand delivered or mailed international money order; Western Union transfer; inter-bank transfer; charge to obligator’s credit card, third-party controlled escrow account, irrevocable trust.

Property

• Distributing a pension issued by a foreign entity or government in US proceeding.
• Distributing real estate situated in a foreign country in a US proceeding.
• Valuation of real estate, pensions, business interests, stock option plans, professional practices and other marital assets situated in a foreign country.
• Recognizing and enforcing a U.S. property distribution order in a foreign country.
• Recognizing and enforcing a foreign property distribution order in the U.S.
• Tracing and recovery of assets abroad.
• Piercing offshore asset protection entities to secure forum court’s jurisdiction over their contents.
• Piercing the veil of foreign country corporations to reach marital assets.
• Tracking and setting aside fraudulent transfers of marital assets to foreign countries.
• Tracking and recovering marital funds laundered in foreign countries.
• Locating and recovery of secreted assets abroad.
• Dealing with international insolvency and bankruptcy proceedings.
• Establishing in a U.S. court proceeding that property located abroad is marital or separate.
• Establishing in a foreign court proceeding that property located in the U.S. is marital or separate.
• Interfacing with international estate planning, gift giving, and family wealth transfer issues.

Taxes

• US tax on spousal support paid by U.S obligor to US obligee living abroad.
• US tax on spousal support paid to US obligee in US by an obligor living abroad.
• Foreign tax on spousal and/or child support paid to or by a U.S. obligee by foreign obligor.
• U.S. property tax issues relative to property located abroad in a U.S. divorce case.
• Property tax issues in the U.S. relative to property located in a foreign country in a foreign court case.
• Multi-jurisdictional taxation issues.
• Effect of tax treaties.
• Effect of taxation on valuation of foreign assets.

Foreign Counsel

• How to locate competent foreign counsel.
• Ethical considerations of U.S. lawyer’s involvement with an international matrimonial case and abroad.
• Ethical consideration in engaging foreign counsel.
• Financial obligations in engaging foreign counsel.
• Malpractice considerations in engaging foreign counsel.
• Dealing with language and cultural differences of foreign counsel

Custody and Abduction

• Establishing and enforcing a custody and/or visitation order for a US resident.
• Enforcing a U.S. custody and/or visitation order in a foreign country.
• Establishing and enforcing a custody and/or visitation order in the U.S. for a parent living in a foreign country.
• Enforcing a foreign custody and/or visitation order in the U.S.
• Modifying any of the above orders.
• Recovering children abducted abroad or wrongfully retained abroad pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.
• Establishing or enforcing access (visitation) to children abroad under Hague Convention.
• Defending a Hague Abduction case in the US.
• Recovering children abducted or wrongfully retained in a country not a member of Convention.
• Securing assistance in recovering children abducted to or retained in Europe and the moves between European countries by utilizing the European, Strasbourg, Nordic, and British Commonwealth Treaties and Bi-Lateral treaties.
• Securing assistance in recovering children abducted to or retained in Latin America under Latin American Conventions and Bi-Lateral Treaties.
• Action for damages for tortious interference with custody or visitation by reason of international abduction or retention.
• Designing custody and visitation orders that will reduce the chances that overseas child abduction will take place.
• Indicators of a possible overseas abduction of a child.

Agreements

• Structuring a settlement agreement or premarital agreement to minimize multi-jurisdictional taxation.
• Structuring a settlement agreement or pre-marital agreement so as to prevent it from possibly being voided in another country as being against public policy.
• Enforcing in a foreign country a U.S. settlement agreement or pre-marital agreement.
• Enforcing in the U.S. a foreign settlement agreement or pre-marital agreement.
• Establishing validity or invalidity of U.S. settlement or pre- marital agreement in a foreign court.
• Establishing validity invalidity of foreign settlement or pre- marital agreement in a U.S. court.

Adoption

• Adoption of a U.S. child by persons in a country signatory to the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption.
• Adoption of a U.S. child by persons abroad in a country not a signatory to the said Convention.
• Adoption by a U.S. resident of a foreign child in a country signatory to the said Convention.
• Adoption by a U.S. resident of a foreign child in a country not a signatory to the said Convention.
• Recognition in U.S. of a foreign country’s adoption order.
• Suit for wrongful adoption of foreign child in U.S. court.
• Suit for wrongful adoption of foreign child in foreign court.
• Suit for wrongful adoption of US child in foreign court.

Service of Process

• Serving process of a U.S. court against a person living in a foreign country signatory to the Hague Convention on the Service of Process Abroad or the Inter-American Convention on Letters Rogatory.
• Serving process of a U.S. court against a person living in foreign country not signatory to either of the above two Conventions.
• Serving process in the U.S. from a foreign court in a country that is a signatory to either of the said two Conventions.
• Serving process in the U.S. from a foreign court in a country that is not a signatory to either of the said two Conventions.

Production of Documents

• Obtaining for a U.S. court proceeding documents from corporations or persons in a foreign country under the Hague Convention on the Taking of Evidence From Abroad in Civil or Commercial Matters.
• Obtaining for a U.S. court proceeding documents from corporations or persons in a foreign country not a signatory to said convention.
• Obtaining documents from corporations or persons in the U.S. for a court proceeding in another country a signatory to said convention.
• Obtaining documents from corporations or persons in the U.S. for a court proceeding in another country not signatory to said convention.
• Accommodating foreign country laws or relevancy, against “fishing expeditions” and other restraints.
• Defending against production in any of the foregoing situations
• Dealing with poor translation of documents.

Production of Public Documents

• Obtaining public documents from governmental agencies in foreign countries signatory to the Hague Convention Abolishing the Requirement of Legalization [Authentication] for Foreign Public Documents and use of the Apostille.
• Obtaining public documents from governmental agencies in foreign countries not signatory to the said Conventions.
• Obtaining public documents from governmental agencies in the U.S. for a court proceeding in another country signatory to the said Convention and use of the Apostille.
• Obtaining public documents from governmental agencies in the U.S. for a court proceeding in a foreign country not signatory to the said Convention.
• Defending against production in any of the above situations.

Depositions

• Depositions in a U.S. proceeding of a deponent situated in another country signatory to the Hague Convention on the Taking of Evidence Abroad in Civil and Criminal Cases.
• Depositions in a U.S. proceeding of a deponent situated in another country not signatory to the said Convention.
• Deposition of a deponent situated in the U.S. arising from a court proceeding in another country signatory to the said Convention.
• Deposition of a deponent situated in the U.S. in a court proceeding in another country not signatory to said Convention.
• Handling depositions of persons in countries where the taking of depositions, even of voluntary deponents, is a crime.
• Defending against being deposed in any of the above situations.
• Dealing with poor stenographic record in foreign countries.
• Dealing with poor interpreters in foreign countries.

Special Defenses

• Diplomatic immunity.
• Partial immunity of international organizations and of their non- U.S. citizens. Some 75 organizations (International Monetary Fund, World Bank, etc.) are covered by U.S. legislation, which grants partial immunity for payment of taxes on ordinary income, division of pensions, wage assignments, etc.
• Foreign court’s refusal to recognize integrity of U.S. court (e.g., where U.S. judge was elected and opposing party or counsel contributed to judge’s campaign.)
• Scope of document production limited to those necessary for trial.
• Parallel proceeding between same parties in another country.
• Non-compliance with Convention procedure.
• State immunity.
• European Union preemptive directive.
• Conflict of laws, treaties and convention.
• Foreign insolvency.
• Anti-suit injunction.
• Blockage laws on national security information.
• Government secrecy acts.

Paternity

• Determining paternity of person living in a foreign country for a U.S. court proceeding.
• Determining paternity of a person living in the U.S. for a foreign court proceeding.
• Recognition in a foreign country of a U.S. paternity determination.
• Recognition in the U.S. of a foreign country determination of paternity.
• Defending against all of the above situations.

Cultural, Religious, Political, Economic and Linguistic Issues

• Differences in personal and religious perspectives of foreign witnesses in U.S. proceeding or deposition can have a direct effect on how the witness interprets events and answers questions.
• Accounting for the political and judicial system, as well as the economic conditions of a foreign country, as they affect its compliance with foreign court orders, treaties and conventions, or in granting comity or facilitating amicable resolutions.
• The examiner’s and witness’s differences in language, gestures and body language can convey misleading information to each other.
• A foreign witness, because of cultural conditioning, can respond differently to inanimate objects in the deposition room or courtroom, which can affect his or her willingness to be forthcoming.
• Dealing with foreign witnesses who have different cultural concepts of the appropriate space between persons conversing with each other. The science of proxemics has found there is a wide difference in the acceptable amount of that space in various cultures, which can affect the interaction between a witnesses and his or her lawyer as well as with trial examiner.
• Dealing with translators and interpreters who vary widely in their ability to convey nuanced meanings, the effect on meaning of culture-bound gestures and body language, or who interpose their subjective judgment as to what the witness intends to say.

Forum Issues

• Comity recognition.
• Conflicts of laws, treaties and conventions.
• Forum selection.
• Choice of law.
• Contracts that fix forum and choice of law.
• Anti-suit injunctions in forum country enjoining parallel proceedings in another country.
• Res judicata and forum non-conveniens.
• Proving foreign law in U.S. divorce proceeding.
• Proving U.S. law in a foreign divorce.

Experts

• Qualifying and using foreign experts in a U.S. proceeding.
• Qualifying and using U.S. experts in a foreign court proceeding.

Letters Rogatory
The process of seeking the judicial assistance of a foreign court in aid of U.S. litigation, e.g. compulsory examination of witness by foreign judge, where there is no Convention between the two countries involved.

Slow and cumbersome
• Narrow relevancy restraints.
• Lack of cross-examination.
• Lack of transcript or poor transcript.
• Resistance to wide-ranging U.S. discovery.
• Restraint on U.S. lawyer participation and input.