Joy and Joe have lived in Illinois. They were married years ago in China. They get divorced and Joy marries Bill, an American citizen. Joy and Bill had submitted a 1-120 visa petition on behalf of Joy, in order for her to become an American citizen. What they are actually doing is seeking to make Joy the spouse of a citizen of the United States.
Joy and Joe had been residents of China all of their lives until they moved to the United States. They resided in Illinois for longer than 90 days, and returned to China just to get divorced. The divorce was granted by the Chinese court.
Joy and Bill had been told by the INS that the marriage between Joy and Joe was still valid because Joy and her ex husband, Joe, did not reside in China when they obtained a divorce there. Joy is asking you to advise her whether the Chinese divorce is valid or not, and what she needs to do. What say you?
Section 201(b) of the Act states in part: The “immediate relatives” referred to in subsection (a) of this section shall mean the children, spouses, and parents of a citizen of the United States: …the immediate relatives specified in this subsection who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations of this Act.
8 C.F.R.204.2(cX2) states: If a petition is submitted on behalf of a wife or husband, it must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both wife and husband.
In Matter of Weaver. 16 I&N Dec. 730 (BIA 1979), the Board of Immigration Appeals held that the validity of a divorce entered into while neither party to it is domiciled in the place where it was granted, but where both parties appeared for the divorce, should be judged by the law of the jurisdiction where the parties to the divorce were domiciled at the time of your divorce. The Board stated at page 732 of the decision: “Since the place where the parties to the divorce were domiciled at the time of the divorce was the only place with an interest in the proceedings at that time, the parties should be able to rely on the law of that state, even if they move to another jurisdiction.”
In Matter of Luna, ID #2939, (BIA 1983) the Board again addressed the validity of foreign divorces for immigration purposes. Citing 24 Am.Jur.2nd, Divorce and Separation, sections 964-65 (1966); Annot., 13 A.L. R.3d 1419 (1967), the Board* decision reads at pages 2 and 3: “A foreign court must have jurisdiction to render a valid decree, and the applicable tests of jurisdiction are ordinarily those of the United States, rather than of the divorcing country, and a divorce obtained in a foreign country will not normally be recognized as valid if neither of the spouses had a domicile in that country, even though domicile is not a requirement for jurisdiction under the divorcing country’s laws.” Citing various Federal and state court decisions, the Board’s decision in Luna reads at page 3: ‘The domicile of the parties has long been recognized as the primary, if not the exclusive, basis for the judicial power to grant a divorce.”
Marriage and divorce generally are considered matters reserved to the states rather than to the federal government. See, Sosna v. Iowa, 419 U.S. 393, 404 (1975). There is no treaty in force between the United States and any country on enforcement of judgments, including recognition of foreign divorces. There are no provisions under U.S. law or regulation for registration of foreign divorce decrees at U.S. embassies or consulates abroad.
A divorce decree issued in a foreign country generally is recognized in a state in the United States on the basis of comity (Hilton v. Guyot, 159 U.S. 113, 163-64 (1895)), provided both parties to the divorce received adequate notice, i.e., service of process and, generally, provided one of the parties was a domiciliary in the foreign nation at the time of the divorce. Under the principle of comity, a divorce obtained in another country under the circumstances described above receives “full faith and credit” in all other states and countries that recognize divorce. Although full faith and credit may be given to an ex parte divorce decree, states usually consider the jurisdictional basis upon which the foreign decree is founded and may withhold full faith and credit if not satisfied regarding domicile in the foreign country.
Recognition may be withheld for various reasons, as where it is contrary to the public policy of the state where the recognition is sought, where the country in which it was rendered does not recognize American decrees, where it is invalid or wanting in integrity by reason of lack of jurisdiction in the foreign court, lack of domicil in the foreign country, where it was obtained in bad faith, by fraud or by taking advantage of the foreign law on the part of one who left the state and went to the foreign country for that purpose, where the operation of the decree would do wrong or injury to the citizens of the state, or where its recognition would work injustice to an innocent party. Nelson, Divorce and Annulment, 2d Ed., Vol. 3, pages 440-441. Many state courts which have addressed the question of a foreign divorce where both parties participate in the divorce proceedings but neither obtains domicile there have followed the view that such a divorce is invalid.
An early case on the validity of foreign divorces in the State of Illinois is Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 386 (1949). States are not required to give full faith and credit to divorces rendered in foreign nations. Whether a state will give force and effect to a foreign divorce decree is solely a question of comity. The full faith and credit clause of the Federal Constitution (Art. IV, Sec. 1, U.S.Constitution) does not require an Illinois court to recognize or enforce the decree of a foreign country. Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949); Tailby v. Tailby, 342 Ill.App. 664, 97 N.E.2d 611 (1951); Nardi v. Segal, 90 Ill.App.2d 432, 234 N.E.2d 805 (1967).
‘There being no statute conferring specific authority on courts of equity to enforce decrees of a foreign country, we have considered whether or not under its general powers a court of equity might assume such jurisdiction. We have heretofore held that jurisdiction of courts of equity to determine divorce cases and all matters relating thereto is conferred only by statute, and that these courts may exercise their powers in such matters within the limit of the jurisdiction conferred by the statute and not otherwise, as the jurisdiction depends solely upon the grant of the statute and not upon general equity powers. Arndt v. Arndt, 399 Ill. 490, 78 N.E.2d 272; Smith v. Smith, 334 Ill. 370, 166 N.E. 85; Smith v. Johnson, 321 Ill. 134, 151 N.E. 550; Hager v. Hager, 1 Ill.App.3d 1047, (4th, 1971).
750 ILCS 5/401(a) states in pertinent part: The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the marking of the finding.
When applying the relevant facts to this case, the record does not establish that Joy or her husband Joe resided in China continuously for any period of time immediately prior to the filing of the divorce petition. As a result the residency requirement mandated by Illinois law had not been met. In light of the foregoing, it is clear that under Illinois law the divorce that was obtained by Joy in China is invalid. Therefore, her present marriage cannot be considered valid under the immigration laws, and the visa petition submitted on behalf of Joy, must be denied. The best and simplest advice may be that the couples, Joy and Joe, and Joy and Bill, each get divorced, and that Joy and Bill then marry. Problem solved.
Modern courts have a problem with the facts that: approximately 50% of all marriages end in divorce, there is a great demand for fast and inexpensive divorces, and Americans can travel quite easily and fast to foreign countries to seek a quick divorce. “Foreign “migratory” divorces fall into four basic categories: (Nichols, Recognition and Enforcement: American Courts, Look at Foreign Divorces, 9 Family Advocate 9-10, 37 (1987)).
Essentially, there are four types of foreign divorces. If the divorce takes place with both parties present in the divorcing country, it is known as a bilateral divorce. In this case, one party can actually be present and the other, if in another location, can be represented by their attorney. The next type of foreign divorce is known as an ex parte divorce, a process in which only one party is participating in the divorce in the absence of the other. A practical recognition divorce is when the recognition of a foreign divorce is denied because it would be an unfair judgment for the party involved. “Practical recognition” divorces, wherein practical recognition may be afforded such decrees because of estoppel, laches, unclean hands, or similar equitable doctrines under which the party attacking the decree may be effectively barred from securing a judgment of invalidity. 13 A.L.R. 3d 1419, 1452. Many jurisdictions will prohibit the spouse who consented to the divorce from attacking it later under a principle of fairness called “estoppel”. Thus, a party may be precluded from attacking a foreign divorce decree if such an attack would be inequitable under the circumstances. A void divorce is basically an ex parte divorce in which one party is unaware of the divorce. This is not a valid type of divorce and will not be officially recognized in the United States.
The Uniform Act on Marriage and Divorce (1970, 1973), 9A Unif. Laws. Ann. 461 (Supp. 1965), is in force in Arizona, Colorado, Georgia, Illinois, Kentucky, Minnesota, Montana, and Washington state. Section 314(c) of the Uniform Act on Marriage and Divorce establishes a procedure for the clerk of court where the divorce decree is issued to register the decree in the place where the marriage itself was originally registered. The Uniform Divorce Recognition Act, 9 Unif. Laws Ann. 644 (1979), specifically denies recognition to a divorce decree obtained in another jurisdiction when both spouses were domiciled in the home state. The Uniform Divorce Recognition Act is in force in California, Nebraska,
The Uniform Act on Marriage and Divorce, applicable in states such as Arizona, Georgia and Kentucky, forces the court clerk to register the divorce in the country where the marriage was registered. In other words, if you marry in Russia and divorce in Kentucky, your divorce will be registered in Russia. The Uniform Divorce Recognition Act, applicable in states such as California, North Dakota and Wisconsin, says that a foreign divorce will not be recognized if both parties reside in the home state.
Getting a divorce overseas is not a problem or something you should necessarily avoid, but be aware of the jurisdiction. Generally, the United States will recognize a divorce that took place in a foreign country as long as certain circumstances are met. Each one of the United States has its own individual terms on divorce. However, according to the basis of comity, states in America will generally accept the terms of the divorce that were set in the foreign country. In other words, the laws where you got married will carry over to the U.S. It is not a guarantee, and the recognition on the basis of comity can be withheld.
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