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A key role of the international family lawyer is to review the “big picture” of an actual or proposed family law case that has an international component. In most such cases the international family lawyer will work with local lawyers in the various jurisdictions. While the international family lawyer will contribute to the team's discussions concerning the laws of countries, states, or provinces in which he or she is not admitted to practice, the international family lawyer will and must allow decisions concerning any such foreign law to be made by the lawyers who are admitted to practice in those jurisdictions. Nonetheless the international family lawyer's role in such discussions will often be of critical importance and value. He or she should be the one who keeps the focus on the client's overall goals, particularly as they apply on the international stage, and who creates a dialog between the local lawyers so that the best strategy and tactics for a client are chosen and so that the individual team members and the client understand what they need to know in order to make sensible decisions and in order to act consistently with the client's overall objectives. This can place the international family lawyer in an extremely delicate position.
Pitfalls resulting from failing to perceive
international family law issues
In many cases a family lawyer
who has not acquired substantial experience in handling international family
law cases may not recognize the international issues and may handle the matter
as if it were just another local case.
Unfortunately it would take an
extraordinarily long list to include all of the possible serious mistakes that
family lawyers could make by failing to recognize and handle the particular
issues that arise in matters that have an international component. The list
would include the following, and very many more:
• Drafting prenuptial agreements
without determining whether the agreement will be enforced in the other
countries with which the parties are connected and to which they or one of them
might move. (This could be massively detrimental to a client who lives in the
U.S. but who is British and who might relocate to England or Hong Kong where prenuptial
agreements are not fully enforced.)
• Failing to include a suitable
choice of law clause in a prenuptial agreement whereby not only is an optimal
jurisdiction's law chosen but the choice of law is likely to be upheld in a
lawsuit in the relevant jurisdictions.
• Failing to provide for execution
of a prenuptial agreement in a manner consistent with the particular
requirements of those jurisdictions in which the agreement might need to be
enforced.
• Failing to ascertain whether the
client would likely achieve a better division of assets in a divorce case if
the case were brought in another available jurisdiction. (There can be vast
discrepancies between the financial awards that courts in different countries
will make in divorce cases, with enormous differences as to such factors as
whether premarital assets, inheritances, and gifts are part of the “pot” to be
divided between the spouses, whether so-called fault influences the division,
whether title determines who receives an asset and whether commingling of
separate property determines the outcome.)
• Failing to determine the spousal
support and the child support that the client might obtain if the case were
brought in another jurisdiction.
• Assuming in a custody case that
a foreign country will enforce a U.S. child custody order under a foreign
equivalent to the Uniform Child Custody Jurisdiction & Enforcement Act. (In
fact, most countries will not enforce U.S. custody orders and the UCCJEA is a
peculiarly American model law which is generally without parallel in the rest
of the world.)
• Failing to understand that, even
if a foreign court will initially recognize a U.S. custody order, if a
relocation overseas is granted the foreign court will usually have modification
jurisdiction under its own laws once the child is habitually or ordinarily
resident in the new country.
• Failing to recognize that
foreign countries will frequently not assist U.S. discovery proceedings.
• Failing to warn pregnant clients
that if they give birth to their baby overseas and remain in the foreign
country for even a short period of time, the child's “home state” for custody
purposes and “habitual
residence”
for child abduction purposes will probably be the foreign country.
• Failing to include in separation
agreements the language that is needed in the jurisdictions in which assets are
located necessary to secure transfers of the assets in the overseas
jurisdictions.
Securing advice from an international family lawyer
Family lawyers who do not
handle many cases that have an international component should seek advice and
assistance from international family lawyers. It is good practice for a lawyer
who is faced with such a case to do so, and it may well be dangerous for a
local lawyer not to do so.
Even those family lawyers who
work in the biggest American cities usually do not handle many international
cases; and in other locations within the United States it may occur quite
rarely.
When a family law case with an
international component comes into the office, a family lawyer will generally
have one of four kinds of response.
One possible response is to simply
refuse to take the case. Internationally connected cases raise tough issues
that may disturb the comfortable routine of a lawyer's office that handles only
conventional and local divorces. The lawyer will be concerned that the office
will need to put far more time into the case than can be recovered in legal
fees. There will, or should, also be a serious and valid concern that the case
will not be handled adequately, which could result in a disgruntled client and
even a malpractice case. The result is that the office declines to be retained.
This is good for the lawyer's peace of mind but may be bad business.
Internationally connected cases are often lucrative cases because of their
inherent complexity and because wealthy clients are most likely to have
international connections.
A second response might be to take the
case and just “wing
it.” Some lawyers
might admit (to themselves or their colleagues) that this is what they are
doing. They believe or hope that they can muddle through. They may comfort
themselves with the thought that the judge is likely to be just as
unsophisticated as they are so perhaps it will make no difference and no one
will recognize their lack of knowledge or pick up on their mistakes. More often
they will “wing
it” by default.
That is, they will not simply recognize the seriousness of the issues that
arise from the international component of the case. This approach is obviously
extremely risky and very bad practice.
The third possible response is to
simply turn the case over to a firm that has handled many international cases.
The problems with this are:
(a) It's generally not good
business to turn business away; and
(b) There may well be no such
experienced firm in town.
The fourth possible response, which is
often the optimal one, is to bring in an international family lawyer to advise
and assist on the case. The advantages of this are:
(a) The local law firm keeps
the case;
(b) The client understands the
need to bring in a specialist and appreciates that his lawyer made the
suggestion;
(c) The international family
lawyer need not be in the local community and usually does not need to be
admitted to practice in the local state as long as the local lawyer takes or
shares the “leading
oar” in managing
the case. (In most U.S. jurisdictions the international family lawyer in
another state may be admitted to appear in the particular case pro
hac vice (for this specific case) upon the motion of a local lawyer.
Such admission is not required unless the “foreign” lawyer is to appear in court.
Instead the lawyer will generally act as a consultant to the local law firm.);
(d) The client's chosen
lawyer, who generally “knows
his way”
around the local courthouse far better than any outsider, will handle the case,
but is advised throughout as to any and all internationally connected issues by
an international family lawyer with established credentials and experience in
that area;
(e) Since it is often critical
in internationally connected cases to have expert testimony as to foreign law, or
otherwise to have input from lawyers in other countries, the local lawyer and
the client benefit from the international legal relationships that an
experienced international family lawyer has developed over the years;
(f) Since speed is often of
the essence in any family law case but most especially in cases with an
international dimension (for example, filing first may be especially important
in international cases and securing stays as to assets or children may be
critical if either might disappear) the local lawyer may immediately tap into
and benefit from the international family lawyer's reservoir of experience,
knowledge and strategic savvy; and
(g) The local firm has done
the right thing professionally and from the standpoint of potential malpractice
liability issues.
