Foreigners Living in California Should Divorce in California
March 29, 2022
There are many couples in California today who married in a foreign country. Some of those countries may recognize Community Property rights of spouses beginning at marriage, and same may not. Certainly, however, California has a strong public policy of enforcing Community Property rights of married spouses, even despite the existence of a foreign premarital agreement.
In Brazil, for example, even where there is a “community property regime”, retirement contributions or other financial investments are not considered community property, even where the contributions or investments occurred during the marriage with community property income. This is particularly problematic, and troublesome, for a stay-at-home spouse when the couple moves to California, becomes residents of the State, and then later divorce while residing in California.
Once personal service of Summons for Dissolution is made on the opposing party, he or she may rush to file a separate “ex-parte divorce” action in the parties’ country of origin, requesting an expedited judgment, thereby cutting off California jurisdiction and depriving the other spouse (your client) of his or her California community property rights. These jurisdictional shenanigans can certainly throw a monkey wrench in the California dissolution case, and cost your client a lot of money to defend against. But all is not lost.
In a jurisdiction fight, the deference to a pending action is sometimes viewed as a question of subject matter jurisdiction when two superior courts have concurrent jurisdiction. Usually, the court that first assumes jurisdiction has exclusive jurisdiction. But not always. The “rule” of exclusive concurrent jurisdiction is actually a rule of preference; it does not necessarily divest a California court of jurisdiction.
In a situation where a foreign “ex-parte divorce” has been granted by the parties’ home country, the California court has discretion to decline to recognize a foreign judgment in certain circumstances, when a judgment was obtained without adequate notice or by extrinsic fraud, or was rendered in a seriously inconvenient forum.
Moreover, a foreign divorce decree that is procured on a fraudulent statement of domicile or residence or without reasonable notice to your client is likely invalid in California. This is because California public policy may not permit recognition of a foreign divorce decree if the divorce was obtained in order to evade the laws of California, such as to deprive you of your California community property rights.
In Scott v. Scott, (1958) 51 Cal.2d 249, the California Supreme Court weighed in on the foreign jurisdiction issue and determined that valid judgments of foreign courts should generally be respected, unless they run counter to California public policy, such as the when the foreign jurisdiction has no legitimate interest in the martial status of the parties (they both have been residing in California for some considerable period of time or all the property is located in California), when the sole purpose of seeking divorce in a foreign court is to evade the laws of this state, or when divorce is made by ex-parte request without reasonable notice to the Respondent.
Jurisdictional fights between parties can have significant and often devastating financial consequences. You should have lawyers experienced international family law attorneys represent you, and Vogler Law Offices, PC is here to help.