Wednesday, October 08, 2014
Lawyers representing international clients who plan to marry and who want the protection of a prenuptial agreement should always consider the international ramifications of any proposed agreement. While conventional domestic prenuptial agreements raise grave malpractice concerns for family lawyers, the concerns become a hazardous minefield when the issues are multi-jurisdictional.
In many ways the world is rapidly shrinking and “globalizing”. “The World is Flat” is not only the catchy title of a bestselling book, but it also highlights the fact that international borders matter far less to most aspects of life than was the case a couple of decades ago. In sharp contrast, however, divorce laws remain local and parochial. Not only do divorce requirements and procedures vary from country to country, but so do the substantive laws concerning the division of assets and spousal and child support. Moreover, the laws about prenuptial agreements and marriage contracts vary considerably around the world and – just as important – the attitudes of courts to such contracts diverge considerably, significantly and in many different ways from country to country. Outside of the European Union there is generally no international law that governs the application of local law to international personal relationships.
Certainly it would be foolish to assume that a "prenup" that is currently valid in the place of the marriage or the place of current residency will be equally valid in other places which might have divorce jurisdiction in the future.
International issues concerning prenuptial agreements are obviously of critical importance for people of different countries of origin or for people from a country other than the place where they currently reside. But there are far more clients who may require international support concerning prenuptial agreement matters. Many clients have significant contacts with numerous countries or believe that they may in the future. Take the example of an international symphony conductor who may have ongoing appointments with many orchestras and festivals around the world, teaching positions with universities and conservatories in other parts of the world, and personal connections and assets in yet more parts of the world. What if his fiancée is an international business consultant? Or an international movie star? In such circumstances, where does the lawyer start? And where does the process end?
We recently represented an American business executive living in country A in Europe who was planning to marry a woman in the same city who was from country B. We knew that residency in country A created red flags as to the future enforceability of the proposed prenuptial agreement there. We elicited the fact that the parties might temporarily relocate to States C, D or E in the United States or to countries F or G in Europe. We further ascertained that they could potentially move to any of a host of countries in the future but that countries H, I and J were more likely than the others. Accordingly, we drafted a prenuptial agreement and certain other documents in close collaboration with attorneys in jurisdictions A, B, C, D, E, F, G, H, I and J.
While such precautions are time-consuming and expensive, it would often be “penny wise and pound foolish” (as the old British saying goes) to skimp on the prenup and leave it all to courts to resolve if and when things go wrong.
The need for extreme care and self-preservation in such circumstances hardly needs emphasizing.
Lawyers representing international clients are now more frequently recognizing that a prenuptial agreement must often be drafted with a view to its potential enforceability in an array of potential jurisdictions. These might include any of the following:
· The state of current residence of the husband.
· The state of current residence of the wife.
· The state of domicile of either of them.
· The state of the nationality of each of them.
· The states to which they might relocate together in the future.
· The states to which just one of them might relocate.
Selection of the Governing Law
A critical element of any international prenuptial agreement is the choice of the jurisdiction under whose law the agreement will be drafted. Obviously lawyers should not be wedded to their own jurisdiction as the “home” of the agreement. It must also be recognized that silence as to the choice of law is in many respects equivalent to the express selection of that jurisdiction.
The decision as to the best choice of law provision cannot be made without being adequately informed as to the applicable laws and practices of the various competing jurisdictions and as to the potential effect of the foreign law in any of the potential jurisdictions. The decision should also be made upon the advice of counsel who has substantial experience in such matters, who is independent in thinking, and who has consulted or will consult with appropriate local counsel in other relevant jurisdictions. It is likewise important to be aware that choice of law clauses may or may not be valid in other jurisdictions.
A choice of law clause should usually be drafted broadly. In one case a court in Oregon applied the law chosen by the prenuptial agreement -- California law -- only as to the construction of the agreement, but did not apply California property law because the choice of law clause was limited to construction issues. In re Marriage of Proctor, 203 Or. App. 499, 125 P.3d 801 (2005), opinion adhered to as modified on reconsideration, 204 Or. App. 250, 129 P.3d 186 (2006). Choice of law clauses should provide for both the application of both substantive and procedural law of the foreign jurisdiction to be effective.
The following are some basic principles that the author has developed from handling many such agreements throughout the world over a number of years:
1. This is a very highly specialized area. There is much more risk for the family law practitioner who agrees to handle an international agreement than is the case with a conventional prenuptial agreement. These matters are tricky and they require great care. Do not handle international prenuptial agreements unless you have experience or are collaborating with an international family lawyer who handles international prenuptial agreements regularly.
2. Ensure that only one lawyer is in charge of the entire process, is the chief coordinator among the various lawyers in different jurisdictions that work on the prenuptial project and is the primary (or sometimes the sole) liaison with the client. If one lawyer is not clearly in charge there may well be great confusion, lawyers will be tempted to jostle for a larger role than might be appropriate, the client will receive conflicting advice and important issues might never be addressed.
3. Do not take on the process of drafting an international prenuptial agreement unless you are prepared to work with foreign counsel, to understand foreign law, to become familiar with different legal concepts that may apply to your client's circumstances and to work in an environment in which there are no clear-cut rules or procedures in which you may often feel compelled to consult your malpractice policy.
4. Make it clear to the client that you are admitted to practice only in Jurisdiction A (or perhaps A and B); that while you may have a little familiarity with Jurisdiction C, you are not admitted to practice there; that anything that you might say about the law of that jurisdiction is strictly subject to the client's confirmation with local counsel; that you have no familiarity with the laws of Jurisdictions D, E, and F; and that you will endeavor to find out what you can about the laws in those jurisdictions but you will need to rely on local counsel and that it is local counsel's advice upon whom the client will ultimately be relying. Back this up with a letter to the client and notes to your file.
5. Obtain clear authority from the client to engage the services of local family lawyers in other jurisdictions for the purposes of advising as to the laws and procedures of their own jurisdictions.
6. Be clear on client confidentiality when you hire a foreign lawyer. The rules vary considerably.
7. Obtain funding to cover all of the anticipated legal charges. It is critical to know that you may be responsible for the legal fees of lawyers you ask for help in foreign jurisdictions. See the International Bar Association's International Code of Ethics, Rule 19, which provides, in part, that, “Lawyers who engage a foreign colleague to advise on a case or to cooperate in handling it, are responsible for the payment of the latter's charges except express agreement to the contrary.” Find out what fees each lawyer charges and how the lawyer expects to be paid. In some countries, fees are fixed by local law. You should establish a workable billing schedule. Foreign lawyers may not be accustomed to including a description of work performed in connection with billing. Some foreign attorneys may expect to be paid in advance. Others may demand payment periodically and refuse to continue until they are paid. Request an estimate of the total hours and costs of doing the work. Be clear who will be involved in the work and the fees charged by each participant.
8. When reviewing foreign law, be careful to understand the terms that the foreign local lawyers use. For example, foreign terms might be translated into English as “marital property”, “custody”, “ownership” and “commingled” but the terms might well have completely or even subtly different meanings in the foreign jurisdiction which could seriously impact the way that a contract is interpreted. Become familiar not only with the law as it is written in the foreign jurisdiction but the law as it is actually applied and as it might apply to your particular client if the prenuptial agreement were brought before the courts in that jurisdiction. In this regard, it is critical to determine how much discretion is afforded to a judge in the foreign jurisdiction to rewrite specific provisions or to take any action other than strictly applying the law concerning prenuptial agreements.
9. Check out the conflict of laws issues. Be alert to the fact that a contract executed in one jurisdiction might in any particular jurisdiction be governed by another jurisdiction's law. You may even need to consider renvoi rules (perhaps for the first time since cramming in law school for a Conflicts exam) insofar as another court that applies its own law to a prenuptial agreement might include its laws on the conflict of laws, which might require the court to apply the laws of another jurisdiction.
10. Inform the client that you do not know where the client and his or her spouse might reside in the future, where their children, if any, might be located and where either or both of them may in the future have assets or do business. All of these factors may have an enormously significant bearing on the enforceability of their prenuptial agreement.
11. Some jurisdictions still do not enforce prenuptial agreements. Other jurisdictions have rules that make it easy for a court to invalidate a prenuptial agreement. In some such situations, it is also good practice to consider whether the parties should sign so-called “mirror agreements” that contain essentially the same terms as the primary agreement but are executed in accordance with the local law and are to come into effect only if the primary agreement is not recognized by a local court. It is sometimes good practice to have the parties execute a simple regime selection document at the time of their marriage in a civil law country such as France or Italy while at the same time having a far more complete agreement entered into in a common law jurisdiction such as New York or California that cross-references the civil law selection. If there is to be more than one agreement it is important to decide how to prioritize between them and to avoid unnecessary confusion by having multiple agreements that cover the same topic.
12. It may well be prudent to insist that there be compliance with both the procedural and substantive requirements of the toughest potential jurisdiction, or even that each and every hurdle to overcome for enforceability in any of a list of jurisdictions should be fully complied with. This may mean that counsel should ensure compliance with all of the execution requirements of every potential jurisdiction.
13. One must be alert to the fact that the way that the courts of a particular country apply foreign law may vary considerably. Thus, in a totally different context, the author worked on a custody case in Japan in which a Japanese court ruled that the provisions of California law requiring that both parents be permitted to be substantially involved in the lives of their children meant that a (good) foreign father could visit his child once a month for a few hours under supervision!
14. One must also be alert to varying rules in other jurisdictions as to validity of execution; requirements for independent representation; disclosure of assets; fairness; and unconscionability. One example is that of disclosure. It may suffice in one jurisdiction to attach an appendix that lists in summary form a party's assets and liabilities. However, in California it is the practice for the attorneys for each party to deliver a “disclosure packet” to the other party containing the last three years' personal tax returns as a well as a schedule of assets and liabilities and if the party owns a business to also deliver three years of business tax returns and a profit and loss statement.
15. Make it clear to the client that you are not an oracle and that you cannot predict the future. Therefore you do not know what the law will be in any particular jurisdiction, even including your own, in the future and how it might be applied by the courts in any such jurisdiction. Consequently, you are unable to guarantee that the prenuptial agreement will be enforceable at the time in the future when a court in your own jurisdiction or in a foreign jurisdiction might look at it.
International prenuptial agreements are traps for the unwary or unknowing. They are extremely important to clients but must be handled with great care by family law counsel.
Tuesday, October 07, 2014
In what circumstances may a custodial parent relocate to another state (or country) and take the children? What law applies and how will the Court make this decision?
"In reality, cases in which a custodial parent's desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled within any mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances...
We hold that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the bests interests of the child."
From the New York Court of Appeals, Tropea v. Tropea.
The courts in New York regulate such moves carefully. The factors that the courts consider are numerous and unlimited. They include:
-The reasons for the proposed move (economic, health, remarriage, "fresh start," other family members, etc.
-The effect of the proposed move on parental visitation.
-Whether visitation can be suitably revised.
-Any provisions in a separation agreement concerning relocation.
-The disruption of relationships in the event of a move.
-The involvement of each parent and others in the child's life.
-The distance and required travel arrangements involved in the move.
-The living conditions and the educational, recreational, medical and other facilities available in the new location.
-The results of any home studies regarding the parties' current circumstances and the proposed new location.
-The likely psychiatric impact upon the parties and the child if there is a move or change in custody.
-Any violation of prior court orders.
-The impact of the relocation on the noncustodial parent.
-The possibility of transferring custody to the noncustodial parent in order to allow the custodial parent to move.
-The feasibility of a parallel move by the noncustodial parent.
-The good faith of the parent requesting the move.
-The child's attachments to each parent.
-The lifestyle of the child in each location, including emotional, educational, and economic factors.
-The effect of hostility between the parents in each location.
-The effect on grandparent and other extended family relationships.
-The safety of the child and the safety of either parent from physical abuse by the other parent.
-The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
-The needs of the child.
-The stability of the home environment offered.
-The quality and continuity of the child's education.
-The fitness of the parents.
-The geographical proximity of the parents' homes.
-The extent and quality of the time spent with the child prior to or subsequent to the separation.
-The parents' employment responsibilities.
Monday, October 06, 2014
Jeremy D. Morley
Grounds for Divorce in Korea
A divorce may be obtained in Korea based on the mutual consent of the spouses. Art. 834, Korean Civil Code. Both spouses need to agree and appear in court in Korea.
Alternatively, the grounds for a judicial divorce in Korea are:
1. An unchaste act (adultery);
2. Malicious desertion;
3. Extreme maltreatment by the other spouse or by his/her lineal ascendants;
4. Extreme maltreatment of one spouse's lineal ascendant by the other spouse;
5. When the death or life of the spouse has been unknown for three years; or
6. Any other serious reason for which it is difficult to continue the marriage.
There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).
The Korean judicial divorce process is a fault-based contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into an unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting a divorce to the party at fault goes against Confucian morality (doei), and may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.
The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient, and wise.
Financial Issues in Korean Divorce Law
The Korean Civil Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(1).
The courts consider such factors as the parties' ages, occupations, the reason why they came to a divorce, and their contribution to the property in deciding the proportion. The property that can be divided is property that was acquired during marriage through the cooperation of both spouses. Property that was acquired solely through the individual effort of one spouse even during the marriage is treated as the individual property of that party. Therefore, the court has a very broad discretion to determine what property is divisible, based on the extent to which the parties “cooperated” in the creation of any particular asset.
Of critical importance is the language in the Code to the effect that the Family Court should determine the amount and method of division “considering the amount of property acquired by cooperation of both parties and other circumstances.” KoreaCivil Code, Art. 839-2(2).
Article 830 defines “particular property” as property that a spouse owned before marriage or property acquired during marriage but is under the name of only one spouse. The meaning of “particular property” in terms of divisible property under Article 839-2 is different from the meaning under Article 830. Property accumulated during marriage that is under only one spouse's name is nonetheless divisible if it resulted from cooperation of the married couple.
The Supreme Court of Korea has affirmed lower court rulings that have insisted that the household labor of one spouse must be taken into account when applying this rule. Nonetheless, the Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances are divisible only if at the time of the divorce they have been received or the date of the retirement and the amount has been declared.
In addition, there is no spousal maintenance in Korea and the courts have the power to adjust the property division in favor of the economically disadvantaged party. For this reason, in some cases a nonworking spouse has received more than half of the parties' assets.
Choice of Law in Korean Divorce Law
Korean courts apply the law of the parties' common nationality to their divorce and to matters arising from the divorce. If there is no common nationality they will apply the law of a common habitual residence or otherwise the law of the place that is most closely connected to both spouses. Article 840. Korean Civil Code.
However, if one of the spouses is a Korean national whose habitual residence is in Korea the court must apply Korean law. Korea, Private International Act, Art. 39.
If the parties have chosen a foreign law to govern their marital property the choice will be respected if the agreement complies with execution requirements and if the law that is chosen is that of either spouse's nationality or habitual residence (or in the case of real property is the law of the location of the property). Korea, Private International Act, Art. 38.
Issues concerning the legal relations between parents and children are governed by the law of the parents' common nationality or otherwise by the law of the child's habitual residence. Korea, Private International Act, Art. 45.
Korean Recognition of Foreign Divorce Decrees
Article 203 of the Korean Code of Civil Procedure provides as follows:
A final foreign judgment shall be valid and enforceable only if it satisfies the following conditions:
1. The jurisdiction of the foreign court of judgment is not denied by any law, or treaty;
2. if the losing defendant is Korean, he received service of summons or other orders necessary for the commencement of the action other than by public notice, or he made an appearance without receiving service thereof;
3. the foreign judgment is not contrary to the public policy or good morals of Korea; and
4. reciprocity is secured between Korea and that foreign country.
Two other provisions of the Korean Code of Civil Procedure are also of significance to enforcement:
Article 476 provides:
1. Enforcement based on the judgment of a foreign court may be carried out only when the admissibility thereof is pronounced by way of a judgment of enforcement rendered by the Korean court.
2. In regard to a suit demanding a judgment of enforcement, the District Court of the place where the general forum of a debtor exists shall have jurisdiction, and in case no general forum exists, the court having the jurisdiction over the action against the debtor in conformity with provisions of Article 9 shall have jurisdiction.
Article 477 provides:
1. A judgment of enforcement shall be rendered without inquiring into the merits of the decision.
2. A suit demanding a judgment of enforcement shall be dismissed in the following cases:
(i) When it is not certified that the judgment of a foreign court has become irrevocable;
(ii) When the foreign judgment does not fulfill the conditions prescribed in Article 203.
The effect of the three statutory provisions is to provide several distinct requirements that must be satisfied if a foreign judgment is to be enforced in Korea:
(a) The requirement of finality and conclusiveness
Interim awards are not the subject of enforcement proceedings in Korea. Foreign temporary dispositions are not recognizable because of their nature as provisional remedies.
A foreign judgment will be considered a final judgment only if there exists no possibility of a future appeal. The party seeking to enforce a foreign judgment must prove either that an appeal is not possible or that the time for an appeal has passed. California counsel should advise as to whether or not these conditions have been fulfilled.
An order for pre-judgment attachment and an order for pre-judgment injunction are examples of non-final judgments. Similarly, even if a foreign judgment which is permitted provisional enforcement pending an appeal is enforceable in the concerned jurisdiction, it cannot be a subject of recognition in Korea so long as it is not final.
(b) The issue of the location of the subject-matter
The in personam and in rem concepts are alien to Korean jurisprudence. Generally, a foreign judgment in rem would be recognized and/ or enforced in Korea when the judgment concerns immovable or movable property that was within the jurisdiction of the foreign court at the time of the proceeding.
(c) The jurisdiction of the foreign court
It is clear that a Korean court will not enforce a judgment of a foreign court concerning a dispute that is subject to the exclusive jurisdiction of Korea or a third country. For example, in an action concerning rights in Korean real estate Korean courts have exclusive jurisdiction. This will apply to movables located in Korea.
(d) Public policy
Public policy or good morals in Section 203 are judged by Korean standards. The requirement has a broad meaning, which may range from substantive contents of the foreign judgment to procedural fundamentals. The reasons leading to the conclusion as well as the conclusion of the foreign judgment itself should be examined in deciding whether or not the content of the foreign judgment is contrary to public policy or good morals.
A judgment ordering payment of support money should be recognized at least in cases involving foreigners, even if it based on polygamy, in view of the fact that the violation of the principle of monogamy is merely indirect. Public policy means the fundamental principles or ideology of Korea’s national legal order and the general sense of morality prevailing in Korean society. The compatibility of a foreign judgment with public policy should be determined by comparing the personal and public interests that might be promoted by recognizing a foreign judgment with the possibility that the national legal order or social ethics may be infringed thereby.
A foreign judgment, the substance of which is not compatible with fundamental principles of Korean law, cannot be recognized in Korea. In determining compatibility with public policy, the factual basis of a judgment, as well as its text, must be taken into consideration. Thus, even a monetary judgment may be held in violation of Korean public policy if the factual basis of such judgment is so illegal or repugnant that the assistance of the Korean courts in implementing the judgment is deemed unacceptable in light of Korean legal philosophy. For example, a judgment ordering the defendant to deliver contraband goods, or a judgment confirming the legality of a concubine is not recognizable in Korea.
Article 17(1) of the Korean Conflict of Laws Act provides that the matrimonial property system shall be governed by the lex patriae of the husband at the time of the marriage. Article 18 of the Korean Conflict of Laws Act provides that Divorce shall be governed by the lex patriae of the husband at the time of the occurrence of the causal facts: Provided that the court may not adjudicate a divorce if the causal facts do not constitute the chief causes for a divorce under the Acts of the Republic of Korea.
Article 23 of the Korean Conflict of Laws Act provides that the duty to support shall be governed by the lex patriae of the person liable to support.
Article 840 of the Korean Civil Act sets forth the bases for a judicial divorce, which are:
1. act of unchastity,
2. malicious desertion,
3. extreme maltreatment,
4. death or life of the spouse is unknown for three years and
5. any other serious cause for making it difficult to continue the marriage. There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).
The Korean judicial divorce is premised on the fault-based system of a contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting divorce to the party at fault goes against the Confucian morality (doei), and it may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.
The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. (Lee, p. 493). In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient and wise.
It is not necessary that a Korean judgment has been recognized in practice if it is predictable that a Korean judgment will be recognized in light of statutes and legal theories in the foreign country. The conditions of recognition do not have to be identical in Korea and the foreign country. A substantial similarity in important points of the respective requirements should be considered sufficient. The term reciprocity in Section 203 means that the particular foreign country does not inquire into the merits of a Korean judgment by reason of a treaty or its domestic law, and that such foreign country would recognize the validity of a Korean judgment under a standard similar to or more lenient than that of Article 203. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.
Several scholars construe reciprocity to mean that the foreign equivalent of Art. 203 must be either the same or more lenient than the Korean standards for reciprocity. Others argue that the foreign recognition standards not differ in any important respects from the requirements found in Art. 203. Recognition of a foreign divorce judgment becomes impossible, however, if the husbands national law is not applied in a suit in which the divorce defendant is Korean. The only court case to face this issue involved a Nevada ex parte divorce decree granted to a Korean businessman who had previously established a temporary residence in New York. The Supreme Court case 71 Da 1634 on Oct. 22, 1971 refused to recognize the Nevada divorce judgment between two Korean spouses on the ground of reciprocity.
Since the Nevada court granted him a divorce for a reason not available in Korea (noncohabitation), the Supreme Court reasons that giving res judicata effect to the Nevada judgment, and thereby barring the wife’s subsequent suit for divorce for malicious desertion and a monetary settlement, which it was considering, would violate Korean public policy evident in Article 18 of the Law concerning Conflict of Laws. While a foreign divorce judgment may be conclusive as to the question of marital status without application of Article 203, any provisions for payment of support can only be enforced by a suit in exequatur under Article 476. Recourse to exequatur on the foreign judgment will therefore cause Article 203 to become directly applicable, including the reciprocity requirement in Article 203 (4).
In a 1971 case involving the recognition of a divorce decree of a Nevada state court, the Supreme Court of Korea clearly declared its support of the first theory (that is, the theory of same or more generous conditions). However, although the Supreme Court has never expressly admitted that it changed its position on this point, the Supreme Court is generally believed to have changed its position and nowadays to support the second theory since a decision of the Seoul District Court of 1995 which expressly took the second theory was upheld by the Supreme Court. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.
The lower Korean courts have held that there was reciprocity between Korea and the State of New York, Germany, Japan, respectively. However, the Supreme Court of Korea denied the existence of reciprocity between Korea and Australia.
(f) Extent of Recognition/ Enforcement
It is generally accepted in Korea that when a foreign judgment deals with more than one claim, recognition may cover only part of the judgment. It was not clear whether the amount for a judgment for one claim may be recognized only partially in terms of amount. An example is to recognize a judgment for punitive damages only to the extent consistent with the public policy of Korea by reducing the amount of the judgment. However, in a recent case the Supreme Court of Korea upheld the decision of the Seoul District Court which has expressly recognized only 50% of the amount of the foreign judgment.
There is also the question of public policy about a foreign judgment (particularly an American court) awarding so-called punitive damages or excessive damages. Some commentators have argued that Korean courts should refuse to recognize such a foreign judgment since it is inconsistent with the international standards for compensation of damages or, alternatively, Korean courts should reduce the amount of damages to a level comparable to international standards. In this connection, it should also be noted that the Conflict of Laws Act of Korea provides that damages for a tort committed abroad may be awarded in Korea only to the extent allowed under the relevant Korean law (Sec. 13 (3) CLA). In light of this provision, it may also be argued that a foreign judgment awarding damages for an amount greater than the one that may be awarded by a Korean court in a similar case should be regarded to be contrary to the public policy of Korea.
The 1995 case involved the recognition and enforcement of a judgment of the court of the State of Minnesota against the Korean defendant ordering payment of $500,000 as damages (including mental anguish, physical injury, consequent medical expenses, loss of earnings, etc) plus reasonable compensation for damages arising out of the assault and rape of the plaintiff, the Eastern Branch of Seoul District Court found that the amount of award was much higher than would be acceptable under Korean law for such damages and thus reduced the amount of compensation that would be enforceable to $250,000, i.e. 50% of the original amount awarded by the Minnesota court, based upon the rationale that recognition and enforcement of the portion in excess of $250,000 would be against the public policy of Korea. The judgment was upheld by the Supreme Court of Korea in 1997. See Judgment of September 9, 1997 in re 96 Da 47517 Case.
Monday, September 29, 2014
Are you someone who always runs at the last minute to catch a plane? Or do you prefer to arrive at the airport ten minutes early and relax?
This is a question that ‘marketing guru’ Seth Godin asks so as to illustrate the benefits of sensible planning in business.
In my area -- international family law -- it raises these questions:
• Do you think it’s better to wait until you’re served with divorce papers before running to a lawyer in a panic?
• Or would be better to plan in advance?
• If you and/or your spouse are internationally connected, would it be best to wait until your relationship has exploded to find out whether your case can and should be brought in another jurisdiction?
• Or would it better to know the international choices that you have at a time when you can still influence the results?
The answers to the questions are pretty obvious.
It’s better to get regular dental check-ups than waiting for a toothache and then having nasty root canal work.
And it’s better to ask an international family lawyer to do some Strategic International Divorce Planning than to wait for the last minute when it may be too late for you to change course.
It’s the doing that’s tougher than the agreeing. In our case we’ll do most of it for you. But you have to get things started.
Friday, September 26, 2014
International family law is expanding as people travel more and spend time with people from different countries. International personal relationships produce an abundance of conflict and litigation. It is hard enough for people to live together when they share a similar background, but it is far harder when they are from different countries, cultures, religions, ethnicities, educational experiences, languages, traditions, and family structures. The resulting pressures may become especially acute when international couples have children and disagree about such matters as child-rearing methods, the role of in-laws, proper education, religious issues, and ultimately the desire of one of them to take the children “back home” to his or her country of origin.
When international personal relationships dissolve, the legal work is often extremely challenging. I have focused on such work for many years and have found it a great way to leverage my international know-how and experience gained as an Anglo-American national with a Japanese wife and children of various citizenships, who has lived, worked, studied, and run businesses around the world and who has taught law on three continents.
The financial aspects of international family law disputes are often complex and difficult to resolve. But when children are the subject of such disputes, the challenges are often greater and the emotions generally run far higher. Simply put, money can be divided but children cannot. Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children, and if they cannot, a local court can issue appropriate orders and also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off.
I represent many parents who live in desperate fear that the other parent will abduct their child to another country and that they will never see the child again. I also represent many parents who desperately want to “go home” with their child to their country of origin.
What Law Governs?
When an international client asks as basic a question as, “What law governs our case?” the answer may well be far from clear. We must often advise that it will depend overwhelmingly on which court--or courts--will have jurisdiction over the case. Although the courts in the state in which the child is currently located have exclusive custody jurisdiction from their own perspective, if the child is taken to visit another country, the courts there will often have jurisdiction under the local law of that country to determine what is best for the child. In addition, these cases often have a strong international law component: More than 80 countries, including the United States and most developed countries, have adopted the Hague Convention on the Civil Aspects of International Child Abduction, which requires that children who have been “wrongfully taken” or “wrongfully retained” overseas should normally be returned promptly to their country of habitual residence.
In practice, international child custody cases often yield complex and messy conflicts between the laws and courts of different countries, demonstrating serious clashes of societal views about culture, religion, gender roles, parental rights, and children's rights, as well as of the role of the legal system in intervening in disputes about children.
Prevention of Abduction
An increasing number of cases involve the prevention of international child abduction. Let's assume that you receive a frantic call from a client somewhere in the United States, who tells you, “I'm sure my spouse is about to take our child to [India/Japan/China/Colombia/England/Germany] and they will never come back. Please help!” What do you do?
Your initial advice may well be purely practical. It will be designed to prevent the immediate threat. Some issues to cover are:
• You must discuss the passport issue. Most likely you should talk about how to secure the child's passport. You might discuss the location of the other parent's passports (recognizing that it is that person's property). You will need to alert the client to the fact that control over passports does not create complete security because many foreign consulates issue renewal passports or other travel documents to their own nationals, without requiring the consent of the other parent and frequently even in the face of a U.S. court order. You should discuss how the U.S. State Department's Office of Children's Issues might help ensure that no new U.S. passports are issued.
• You should talk about how to track the child's whereabouts. Who can watch the child? Should you alert school authorities? What about placing a GPS tracking device in the child's clothing or cell phone? What about alerting the police or hiring a private investigator?
• Perhaps your client should contact the airlines to discover if the other parent has bought airline tickets for the child. Perhaps you should write to the airlines to demand that they prevent the child from boarding.
• You should discuss whether your client should contact other family members about the issue and what to say to them.
• You should advise your client how to instruct the child as to what to do in case of an emergency.
• You should advise your client about collecting and securing evidence for a potential court hearing.
You may well want to secure an emergency restraining order very promptly from the family court. An initial temporary order should be easy to secure, but it will be far more difficult to keep such an order in place over the long term or to ensure that it has sufficient teeth to be effective. The United States has no exit controls, with certain exceptions, and a mere court order will not trigger the kind of effective checks that other countries have in place to prevent children from being taken out of the country by one parent or family member. Ideally the short-term solution should be to give sole custody to your client and to require that any access by the other parent be strictly supervised.
Burden of Proof
The long-term burden will be strongly on your client to present compelling evidence sufficient to justify what the court will likely see as extraordinary relief. That evidence must be of two distinct types. First, you must establish that the other parent represents a serious risk of being an international child abductor. Second, you must show, if appropriate, that the foreign country's legal system will not return an abducted child at all or will do so only after great delay and expense. There will be a significant interplay between these two factors. The more that you establish a strong likelihood that the other parent will abduct the child, the less evidence you should need that the country in question presents a high degree of risk. So if the potential country is one such as England or New Zealand, which have strong and effective laws and systems in place to return abducted children, you will likely need very strong evidence of an anticipated abduction. Conversely, if the country presents an obviously greater risk of not returning an abducted child (think Japan or Venezuela), much less evidence of the likelihood that the particular parent will be an abductor should be required.
Your evidence concerning the specific parent should focus on establishing as many of the so-called risk factors as possible. These factors are well established and have been codified in the Uniform Child Abduction Prevention Act (UCAPA). The most compelling evidence would be clear proof of a threat to abduct. Surprisingly, some parents make explicit threats in emails. More typically you will need to build a circumstantial case based on such factors as the parent having moved money overseas, vacated a residence, made international job inquiries, retained few ties to the United States, or kept strong connections to the foreign country and community, or being disdainful of the United States.
In order to show that the foreign country's legal system will not return an abducted child at all or will do so only after great delay and expense, you will start with the Hague Convention. It will be highly significant if the country has not signed the Convention or if the United States has not accepted its accession. However, just because a country has signed the Convention does not mean that it will enforce it. As a signatory, Mexico is obliged to return abducted children promptly; in reality, it does not do so, as the U.S. State Department has repeatedly reported.
Likewise, just because a country has not signed the Convention does not necessarily mean that it will not return abducted children. For example, Singapore has not yet acceded, but its courts follow the spirit of the Convention.
Frequently you will need to ask the court to consider and evaluate the real facts as to a country's legal system. Generally speaking, U.S. judges are extremely uncomfortable evaluating another country's legal system and predicting the results that may be expected of a case overseas. Although such reluctance is perfectly understandable, it must be overcome. It is absolutely essential in this area that judges should not shirk from their responsibility to judge whether or not a child is likely to be returned from abroad if a parent or others in his or her family decides to keep the child in that country.
How do you prove that a foreign country's legal system in international child custody cases is ineffective, corrupt, or slow? How do you establish the extent to which the courts in another country will recognize and enforce foreign--and especially U.S.--judgments, particularly in the family law area? Or the extent to which discrimination--sexual, religious, ethnic, or national-- might impact the issue in the courts of that country?
And how do you convince a court that it is both appropriate and necessary for it to act as a judge of the legal systems in place in other countries?
Expert testimony is the key. For example, in a recent case in Ontario, Canada, a mother sought to prevent the child's father from taking the child to visit his family in India. Counsel for the mother presented my expert affidavit as to India's law and practice concerning international child abduction to that country. Based on my experience with similar cases and my research on India, I opined that if the child were kept in India, the authorities there would be most unlikely to secure his return. The court ultimately decided to prevent the proposed visit, relying primarily on my expert opinion, which, it said, “unequivocally outlined the many challenges, frustrations--and indeed roadblocks--which the Applicant would face in attempting to secure [the child's] return if the Respondent elected not to return the child from India.”
The Court of Public Opinion
Publicity may sometimes be helpful. In 2009 my client's children were abducted from Tennessee to Japan. The Tennessee court then gave sole custody to my client, who went to Japan and tried to bring the children home to America. Instead, he was jailed in Japan. We quickly launched a high-profile campaign to secure his release and to highlight the fact that Japan is a haven for international child abduction. The client was then freed. While he has not seen his children again, at least the world now knows of the problem. The U.S. House of Representatives has now condemned Japan in extremely strong terms, and the Office of the Secretary of State has now joined with a host of other countries in demanding that Japan change its laws and sign the Hague Convention. One extremely constructive result of the campaign is that judges are now far more aware of the dangers of allowing children to be taken to particular countries if there is a real reason to suspect that the child may not be returned--and are aware of the firestorm of publicity that such cases can elicit. In subsequent cases concerning Japan, this has enabled me to be far more successful than before in persuading courts to prevent children's visits to that country.
Representing the Other Parent
What if you are representing the other side in these cases? Perhaps your client genuinely wants to take the child for a limited family visit to his or her country of origin. Or perhaps your client came recently to the United States from another country with an American spouse, and now that the relationship is over wants to “return home” with the child.
In any such case you will need to explain how the U.S. legal system works in the area of child custody. Often you will need to encourage the client to use the system and to explain the grave dangers of disrespecting that system. The client will often say, “It's my child. I'm the one who looks after him. The other parent is never around. Why on earth should I have to go to court to ask for permission?”
You may well need to discuss with the client that acting unilaterally might lead to a criminal as well as civil difficulty. For example, the International Parental Kidnapping Crime Act of 1993 makes it a federal felony to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. Once a federal warrant is issued, Interpol may issue a “red notice” seeking the person's arrest wherever found.
If a client tells you that he or she intends to covertly take and retain a child overseas, you need to exercise great care--you may have a duty to report the planned felony to the police, notwithstanding the attorney-client privilege.
In presenting an application to a court for a temporary visit with a child overseas, you will present those facts and those arguments that show that the client is unlikely to abduct and that the country in question is one that respects U.S. custody orders and returns abducted children. In a case for an Italian client living in New York, I offered testimony that Italy was in full compliance with the Hague Convention and that its performance was significantly better than that of the United States. The court accepted my expert testimony and authorized the visit.
If the request is for relocation, the burden of proof on the applicant is far higher. Domestic child relocation cases are generally difficult to win, and international relocation cases are much more so. They often require lawyers to present evidence as to the legal, social, cultural, political, economic, religious, and educational environment of a foreign country and, in particular, as to whether a U.S. custody order will be recognized and enforced in that country. It is generally a major mistake for a lawyer to present any such case without having worked intensely with the client to prepare an attractive relocation package. The plan should demonstrate the serious steps that the parent has taken to secure optimal conditions for the child and the client in the proposed new location. Equally important, it should establish that the taking parent will not merely permit the left-behind parent to participate in the child's life but will actively encourage and genuinely promote such ongoing contact.
In this article I have been able to provide no more than a brief introduction to a fascinating area of the law. International child custody cases are always stimulating and sometimes extremely frustrating. But when a client e-mails to say, “Thanks to you, my children are safe” or “Blessings, thanks to you, I got the kids back,” they can be the most rewarding cases of all.
Jeremy D. Morley is a New York lawyer and the author of International Family Law Practice. His firm handles family law cases in New York and New Jersey. He consults with clients and lawyers globally on International family law matters, working with local counsel as appropriate. He frequently acts as an expert witness on International family law. He may be reached atwww.international-divorce.com.