THE ENFORCEMENT OF CHILD SUPPORT PROVISIONS IN FOREIGN DIVORCE JUDGMENTS

There are a legion of cases that describe why the Illinois courts will not give full faith and credit to a foreign divorce decree judgment for support. Those cases follow 735 ILCS 12-618 through 12-626 (The Uniform Foreign Money-Judgments Recognition Act), which states that, “foreign judgment” means any judgment of a foreign state

[outside of the United States] granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters.” There are a plethora of cases which describe the techniques used by courts, in order to attempt to accomplish that which they have not been able to do: 1) Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949)-Foreign Judgments do not have to be given recognition by Illinois Courts. Illinois Courts may accord Foreign Judgments comity. 2) Zalduendo v. Zalduendo, 45 Ill.App.3d 849, 360 N.E.2d 386 (1st Dist., 1977)- The fact that the Uniform Foreign Money Judgments Recognition Act does not apply does not preclude recognition of foreign judgment if there is some other jurisdictional basis to enforce the foreign judgment (comity, e.g.). 3) In re Marriage of Silvestri and Gagliardoni, 186 Ill.App.3d 46, 542 N.E.2d 106 (1st Dist., 1989)-A prima facie case of entitlement to recognition of a Foreign Judgment is established if the rendering court had jurisdiction over the person and subject matter and i) there was timely notice and an opportunity to present a defense; ii) no fraud was involved and iii) the proceedings were according to a civilized jurisprudence. 4) In re Marriage of Brown, 225 Ill.App.3d 733, 587 N.E.2d 648 (4th Dist. 1992)-A Foreign Judgment may be given recognition and termination if marriage by foreign court divests the Illinois Court of subject matter jurisdiction.

Illinois courts have tried to, and cannot, recognize foreign divorce decrees regarding any issues other than custody and child support. Based on 735 ILCS 618 et seq, an Illinois court has no power to initiate support if the foreign decree is silent on the issue. (IRMO Snyder vs. Snyder, 269 Ill.App.3d 848, 646 N.E.2d 1263 (1st Dist., 5th Div., 1996). For a discussion of these issues, please refer to this author’s article published in the ISBA General Practice and Family Law Newsletters: “Recognition and Enforcement of Foreign Divorce Decrees”, and “Child Support Transcends International Boundaries” (can be found at buffalogrove.lawoffice.com), and “Problems in the enforcement of foreign divorce judgments”, by Scott Colky, (can be found at www.isba.org/Sections/Family Law/5-01b.htm).

However, the Illinois courts, via 750 ILCS 22/101 (Uniform Family Support Act, 1996), et seq., were empowered to decide support-related issues, if the foreign decree included a provision for child and/or spousal support. There is no federal legislation allowing this to be accomplished. Therefore, due to the great concern on the part of the individual states, the mechanism by which this is accomplished is a by-product of the fact that an individual state is free to enact legislation which is not in conflict with federal legislation. Illinois has legislated, via 750 ILCS 22/100, et seq., that, among other things, a State [that it can enforce judgments with] includes, “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this Act, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.” Id. at 22/101. Foreman v. Foreman, No. 00-524, N.C.App., S.E.2d (July 3, 2001)(Although UIFSA was enacted in l996, a spousal support order entered in l990 may be registered and enforced under UIFSA to require payments due before 1996).

“A support order or an income-withholding order issued by a tribunal of another state may be registered in this State for enforcement.” 22/601. The way to accomplish that is:

1. For recognition and enforcement-only 22/601
2. Procedures regarding information and documentation to be filed with the Illinois court. 22/602.
3. Registration takes place when the documents are filed with the Illinois court, thus by-passing any other registration procedures. 22/603.
4. The law of the issuing state [foreign tribunal] governs the nature, extent, amount, and duration of current payment and other obligations of support and the payment of arrearages under the order. 22/604.
5. In a proceeding for arrearages, the statute of limitation under the laws of this State, or of the issuing state, whichever is longer, applies. 22/604.
6. Procedures for notice (22/605) and contest (22/606).

1. For modification-22/609
2. The Illinois court must find that i) the child, the individual petitioner, and the respondent do not reside in the issuing state; ii) a petitioner who is a nonresident of this State seeks modification; and iii) the respondent is subject to the personal jurisdiction of the tribunal of this state; or, in some situations, consent from the parties for modification of the support order, if the child is subject to the personal jurisdiction of the tribunal of this State. 22/611.
3. A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state. 22/611©
4. Once the tribunal of this State issues an order modifying a child support order issued in another state, a tribunal of this State becomes the tribunal having continuing, exclusive jurisdiction.

Someday I expect that things will and must change so that a foreign divorce decree will be recognized in toto in the courtrooms of the United States. But, until that time, either the office of the State Attorney or a private attorney may proceed under UIFSA as described above.