Friday, May 30, 2008

Comparing Divorce Jurisdictions in International Family Law: Procedure May Trump Substance

My new article, Comparing Divorce Jurisdictions in International Family Law: Procedure May Trump Substance, is in the current (June 2008) edition of The Matrimonial Strategist. It is also available on my website.


When comparing possible jurisdictions for international family law cases, it is frequently important to focus on procedural matters and not simply to compare the rules and practices concerning the division of assets, maintenance and other substantive issues. For example, while it is important to know how different courts will determine which assets are to be divided upon a divorce and how they will determine the appropriate proportions, it is often even more important to compare the discovery techniques of the jurisdictions being compared and the disclosure obligations imposed upon the parties in the various jurisdictions. Case in point: California is at one extreme in requiring real disclosure, while Austria, Japan and many other civil law countries are at the other extreme in requiring very little disclosure. Read on

Monday, May 19, 2008

Israeli Divorce Based on 'Get' Not Recognized in New York


A state judge has declined to recognize an Israeli divorce judgment that was based on a "get," or decree of divorce, issued by a Brooklyn rabbi.

"If this court were to sanction the utilization of a 'Get' to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a 'Get' in New York could register it in a foreign jurisdiction and potentially, later on, rely on the 'Get' to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual," Supreme Court Justice Jeffrey S. Sunshine of Brooklyn (See Profile) ruled in Tsirlin v. Tsirlin, 20542/06.

"It would have the practical effect of amending the Domestic Relations Law section 170 to provide a new grounds for divorce," he said.

Justice Sunshine allowed the plaintiff-husband's Brooklyn divorce proceedings to go forward, denying the wife's motion to dismiss on the grounds of comity and judicial estoppel.

Jeremy D. Morley, an expert in international family law who is not involved in the case, called the decision surprising.

"Usually we would grant comity to a foreign divorce decree so long as at least one of the parties was domiciled in the foreign country," said Mr. Morley. "It's most unusual for a domestic court to look at the reasons behind a foreign divorce decree.
"

"It'll be interesting to see how the decision not to give comity plays out in other situations. How would it apply when you have an administrative divorce from
Japan, which is alien to our system, or a divorce from a country that allows divorce for grounds that we find unusual?"

Alla and Alexander Tsirlin married in Jerusalem in September 1995. Less than six months later, Ms. Tsirlin gave birth to a son, Jonathan. Ms. Tsirlin works in a medical office; Mr. Tsirlin is a bus driver.The family moved from Israel to the United States in October 2003, though Mr. Tsirlin soon returned to Israel a month later due to passport problems.

In December 2003, the couple appeared before a Brooklyn rabbinate, which issued a "get," or religious divorce, according to Mr. Tsirlin.

Two years later, Israel's Rabbinical Court, Jerusalem District, issued a divorce judgment based on the 2003 Brooklyn decree.

In July 2006, Mr. Tsirlin initiated the present divorce action, in which he also sought joint custody and child support.Ms. Tsirlin contested the action on comity and judicial estoppel grounds, citing the Israeli divorce decree.

In a decision last week, Justice Sunshine rejected Ms. Tsirlin's motion. He found that allowing a U.S.-based get to serve as the basis of a valid divorce would provide an end-run around the state's divorce laws.

Justice Sunshine relied on the 1924 Appellate Division, First Department, decision Chertok v. Chertok, 208 App.Div. 161, in which the court found that a get acquired in New York and "consummated" in Russia was not binding in the United States."[A]pplying the holding of Chertok to the facts of this case, although the Israeli government may recognize the divorce granted in New York City, it is void in its inception under our law," Justice Sunshine held.

By Mark Fass
New York Law Journal, May 19, 2008


Friday, May 09, 2008

Japan to Sign Hague Child Abduction Convention


Yes!!!!

05/10/2008
BY MIAKO ICHIKAWA
THE ASAHI SHIMBUN


Japan will sign a treaty obliging the government to return to the rightful parent children of broken international marriages who are wrongfully taken and kept in Japan, sources said Friday.

The Justice Ministry will begin work to review current laws with an eye on meeting requirements under the 1980 Hague Convention on Civil Aspects of International Child Abduction, the sources said. The government plans to conclude the treaty as early as in 2010.
The decision was reached amid criticism against Japan over unauthorized transfer and retention cases involving children. The governments of Canada and the United States have raised the issue with Japan and cited a number of incidents involving their nationals, blasting such acts as tantamount to abductions.

In one case, a Japanese woman who divorced her Canadian husband took their children to Japan for what she said would be a short visit to let the kids see an ailing grandparent. But the woman and her children never returned to Canada.

Once parents return to their home countries with their children, their former spouses are often unable to find their children. In Japan, court rulings and custody orders issued in foreign countries are not recognized.

Under the convention, signatory parties are obliged to set up a "central authority" within their government. The authority works two ways.

It can demand other governments return children unlawfully transferred and retained. But it is also obliged to find the location within its own country of a child unlawfully taken and retained, take measures to prevent the child from being moved out of the country, and support legal procedures to return the child to the rightful parent.

Sources said the Japanese government will likely set up a central authority within the Justice Ministry, which oversees immigration and family registry records. The ministry has decided to work on a new law that will detail the procedures for the children's return.

In 2006, there were about 44,700 marriages between Japanese and foreign nationals in Japan, about 1.5 times the number in 1996. Divorces involving such couples more than doubled from about 8,000 in 1996 to 17,000 in 2006.(IHT/Asahi: May 10,2008)

Tuesday, May 06, 2008

Preventing International Child Abduction: Texas Case

When should a court take steps to prevent possible international child abduction by a foreign national parent?

This issue is critical to many parents but many courts -- and even many family law lawyers -- do not give the issue the serious consideration that it must be given.

The consequences of international parental child abduction are frequently so severe that when a parent raises concerns there is an obligation to consider them long and hard. The challenge for judges is that the evidence that is proffered by worried parents is invariably speculative.

To require a parent who wishes to prevent abduction to produce clear proof of an actual threat to abduct imposes an often-impossible burden on a concerned parent.

Recently a Texas Court of Appeals was asked to consider whether a trial court had improperly found a potential risk of abduction of a child by her Bulgarian father. Karenev v.Kareneva, No. 2-06-269-CV (Tex. App.3/20/2008) (Tex. App., 2008).

Fortunately for the mother and child, Texas has been relatively forward-thinking in having enacted legislation expressly designed to prevent international child abduction (Texas Statutes Sec. 153.50 et seq).

The legislation instructs the courts that in determining whether there is a risk of the international abduction of a child by a parent of the child, “the court shall consider evidence that the parent:

(1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person's right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent's conduct was necessary to avoid imminent harm to the child;

(2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person's right of possession of or access to the child;

(3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;

(4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:

(A) quitting a job;

(B) selling a primary residence;

(C) terminating a lease;

(D) closing bank accounts;

(E) liquidating other assets;

(F) hiding or destroying documents;

(G) applying for a passport or visa for the parent or the child; or

(H) applying to obtain the child's birth certificate or school or medical records;

(5) has a history of domestic violence that the court is required to consider under Section 153.004; or

(6) has a criminal history or a history of violating court orders.”

If, based on the above factors, the trial court finds that there is "credible evidence of a risk of abduction of the child," the statute requires the court to also consider the following factors in order to evaluate that risk:

(1) Whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and

(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.

The evidence at trial showed that the husband had once enrolled the child in school in Texas without the wife's knowledge and had listed his first ex-wife as the emergency contact; that the wife was afraid husband would kidnap the child and return to Bulgaria, where both parties were born; that the wife claimed that her husband was a millionaire in Bulgaria; that he had traveled to Bulgaria three times in the preceding two years; that the husband had a history of threats, harassment, and domestic violence and had been convicted of harassment; that he claimed income far less than his expenses; and that he had not paid child support.

There was no evidence of any actual threat to take the child to Bulgaria.

Nonetheless the appellate court concluded that “there is sufficient evidence to support the trial court's finding of a potential risk of international abduction of the child by husband, and, therefore, the trial court did not abuse its discretion.”