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November 01, 2020 Feature

Entering the Forum Shops: How to Initiate a Family Law Action Against a Foreign Party

Ariel Leichter-Maroko

Many family law practitioners will encounter at least one case involving a party outside the United States. While a state’s substantive family laws may treat such a party no different from any other, the same cannot be said for the procedures needed to bring that party to court. Attorneys who ignore the procedural nuances of such a case do so at their own peril. By the same token, knowing what to do at the early stages of such a case can have a huge impact on its outcome.

Prefiling Considerations

Planning for any case should begin no later than the initial client consultation. This is especially true when one of the parties is outside the United States. An attorney considering such a case must gather sufficient information from the potential client to enable the attorney to determine whether to take the case, how much to charge, and how to advise the potential client. Facts relevant to cases with a party outside the United States include, for example, where the parties and children live and have lived, where the opposing party travels and when, the opposing party’s connection to the United States and to any states, and the existence or status of foreign proceedings.

In addition to gathering facts from the potential client, the attorney should identify as many potential issues and challenges as possible at that early stage. This will better enable the attorney to assess the type and amount of work needed to handle the case, the resources and external assistance that will be needed, and ultimately whether the attorney is equipped, and wants, to handle the case. Early issue spotting will also enable the attorney to better calculate an appropriate retainer and/or fee structure, and to more confidently and accurately communicate with the potential client about his or her case and what to expect.

While early issue spotting is important in every case, it carries heightened importance when one party is outside the United States. Even attorneys who regularly handle cases with international issues are well-advised to carefully examine each such case and identify the potential issues involved before agreeing to accept it. This is not only because any such case may implicate numerous domestic legal issues far outside the scope of everyday family law practice—such as international treaties, constitutional law, jurisdiction, and comity—but also because the procedures required to bring a party from another country before a state court vary in complexity, time, and cost depending on which country the party is from.

When a case presents international issues, it is often advisable for the attorney to consult with foreign counsel at the earliest possible opportunity, including, if possible, before agreeing to take the case. Foreign counsel can save an attorney countless hours at the beginning of a case by quickly providing critical information that would otherwise be difficult for the attorney to obtain, and that could help the attorney make early strategic decisions, including whether and which relief is available in the foreign country, which forum’s law better favors the client on each issue in the case, whether it is more expensive for the client to pursue the case in one forum vs. the other, which forum is more likely to enforce the orders of the other, etc. There are many ways to find foreign counsel. A great place to start is the website of the International Academy of Family Lawyers, which has a database of family law attorneys from all over the world, and which is searchable by country, region, and city. Other sources include U.S. Embassy websites (the user-friendliness of these websites may vary by country), bar associations, study groups, and even Google.

The threshold question in many cases involving a party from outside the United States is where the case should be brought. To answer this question, the attorney must first determine where the case could be brought. The answer to both of these questions requires an understanding of the types of relief that will be needed, the availability of that relief in either forum, and the comparative benefits of each forum’s law with respect to each type of relief. For example, if the client needs to dissolve the marriage, the case cannot be brought in a forum that does not have jurisdiction to dissolve the marital status (e.g., for failure to meet residency requirements), unless both forums permit divisible divorce. And even if both forums could exercise jurisdiction over all matters, one forum might be more beneficial to the client for custody issues, whereas the other forum might be more beneficial to the client for support issues. In that case, the decision to pursue litigation in one forum or the other (or even in both) requires a thorough understanding of the types of relief involved in the case, their relative importance to the client, the relative benefits and drawbacks of each forum with respect to each type of relief, and the client’s ability and willingness to pursue litigation in each of these forums.

Filing and Service

A family law action with international aspects is generally initiated in state court in the same manner as a family law action without international aspects, by filing an initiating document with the court (e.g., a Petition for Dissolution of Marriage, Petition to Determine Parental Relationship, etc.). As any family law practitioner in the United States knows, practices and procedures vary from state to state. The procedures described here are derived from the author’s experience practicing law in California. However, many of the concepts may be applicable throughout the United States.

Service is more complicated. If the opposing party is in another country, the available or required manners of service will likely differ from those applicable to service in state. The threshold issue in determining how service in a foreign country may or must be executed is whether that country is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention or Hague). If the foreign country is a Hague signatory, service must be effected according to Hague (more below). If the foreign country is not a Hague signatory, the service requirements will usually be more relaxed. (The United States has another treaty called the Inter-American Convention on Letters Rogatory (other signatories include Mexico, several Central and South American countries, and Spain), but unlike the Hague Service Convention, it does not preempt other service procedures.) For example, the permissible methods for serving a California summons in a non-Hague country are the same as those for serving a California summons outside California but within the United States (e.g., personal delivery, registered or certified mail with return receipt requested, etc.), including any manner “as prescribed by the law of the place where the person is served,” as long as that method is reasonably calculated to give actual notice. Cal. Civ. Proc. Code §§ 413.10(c), 415.10 et seq.

The Hague Service Convention limits the manner in which service can be effected in signatory countries. The Hague procedures are mandatory whenever documents must be transmitted abroad to effect service. Convention Done at the Hague Nov. 15, 1965, art. 1, T.I.A.S. No. 6638 (Feb. 10, 1969). Because it is an international treaty, state courts cannot exercise jurisdiction in a manner inconsistent with the Hague. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 697–99 (1988). There are relatively few circumstances in which compliance with the Hague is excused. The most notable of these is when the address of the person to be served is unknown (id. (“This Convention shall not apply where the address of the person to be served with the document is not known.”)) and cannot be ascertained despite reasonable diligence. Lebel v. Mai, 210 Cal. App. 4th 1154, 1161 (2012) (“the only reasonable construction of the ‘address of the person to be served . . . is not known’ clause in article 1 is that the Hague Convention ‘does not apply to situations in which the whereabouts of the defendant cannot be ascertained despite reasonable diligence’”). Unless this or another circumstance excuses compliance with the Hague procedures, failure to comply with those procedures will void service.

The Hague Service Convention was adopted in 1965 and now has 75 signatories. Status Table, HCCH. It authorizes several methods of service, including

  • via a “Central Authority” created in each country to receive and execute requests for service on its citizens. Convention, art. 2-6;
  • via diplomatic or consular agents of the originating country (the United States in this case), unless the foreign country has declared that it opposes such service on persons other than nationals of the originating country (i.e., U.S. nationals). Id., art. 8;
  • through consular or diplomatic channels to designated authorities in the foreign country. Id., art. 9;
  • by mail, as long as the foreign country has not objected to this method, and service by mail is otherwise authorized by the forum. Id., art. 10(a); and
  • through judicial officers, officials, or other competent persons of the foreign country as long as it does not object. Id., art. 10(b)–(c).

The first step in assessing how to effect service is to determine whether the foreign country is a Hague signatory. If the foreign country is a Hague signatory, the next step is to determine whether it opposes service by diplomatic channels or by mail. This information is in the declarations and reservations made by the country upon its adoption of the Hague. If the foreign country is a Hague signatory and opposes service by diplomatic channels and by mail, service must be effected through the Central Authority.

The list of Hague signatories, the declarations and reservations made by each signatory, and information about the Central Authority for each signatory can be found at https://www.hcch.net/en/instruments/conventions/status-table/?cid=17. Also listed at that site is important information particular to each country, such as the requirement that documents to be served be translated into certain languages.

Service through the Central Authority can be effected by filling out and sending a “Request for Service Abroad” form describing each document to be served, being sure to comply with all the country’s specifications, including required translations.

Because of the unfamiliarity of many family law practitioners with the Hague Service Convention, service is another area in which foreign counsel might be able to provide valuable assistance.

Opponent’s Options

A person in a foreign country who is sued for divorce (or other family law relief) in the United States may have several procedural challenges available. However, that person should first determine whether a successful challenge would even be in his or her best interest. It is conceivable that on certain issues, the foreign party could fare better in a court in the United States than one in a foreign country. It is therefore important for the foreign party to consult with an attorney in the forum state, and for that attorney to consult with an attorney in the foreign country, to determine whether it would be beneficial to the person for the case to be heard in the foreign country, and accordingly, whether a procedural challenge, even if winnable, is advisable. Included in the foreign party’s calculation should be the projected expense of mounting the procedural challenge, whether there would be sufficient resources after a failed challenge to retain representation on the merits, and whether there would be sufficient resources after a successful challenge to litigate the case in a foreign court. Finally, the foreign party should consider the risk that mounting an unsuccessful procedural challenge might impair the court’s opinion of the foreign party going forward.

Procedural challenges can involve claims of

  • improper service;
  • lack of personal jurisdiction;
  • lack of subject matter/in rem jurisdiction;
  • forum non conveniens; or
  • comity.

These are addressed briefly.

To quash a summons for improper service, the foreign party would allege that he or she was not served properly, either because none of the state’s prescribed methods of service was complied with or, if the country of purported service was a Hague signatory, the Hague procedure was not followed. If the court finds that service was inadequate, and that there was no waiver of service (e.g., the foreign party did not voluntarily make an appearance), it should quash the summons and rule that it lacks personal jurisdiction over the foreign party (because jurisdiction is perfected by the service of summons).

Similarly, the foreign party could move to quash for lack of personal jurisdiction (i.e., other than by virtue of inadequate service). The factors that satisfy personal jurisdiction vary with the type of relief sought. For example, the Uniform Interstate Family Support Act (UIFSA) includes its own criteria for establishing personal jurisdiction. If these are not met, the court cannot exercise personal jurisdiction over the foreign party on support matters.

Subject matter/in rem jurisdiction refers to the court’s jurisdiction over the issues, rather than the parties. For example, a California court generally has no jurisdiction to dissolve a marriage (sometimes referred to as in rem jurisdiction) unless at least one of the parties was domiciled in California for the six months immediately preceding the filing date. As another example, subject matter jurisdiction over custody issues in nearly all states is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). If the jurisdictional requirements of UCCJEA are not met, the court will have no subject matter jurisdiction over custody. In the absence of subject matter jurisdiction, the court cannot act.

Forum non conveniens is a discretionary challenge based on a claim that the forum is inconvenient and that a foreign court would be suitable. A forum non conveniens challenge is commonly raised as an alternative request for relief in conjunction with a motion to quash service or motion to quash for lack of jurisdiction. Relief, if granted, is in the form of dismissing, or more commonly staying, the proceedings in favor of trial in a foreign court. But unlike a jurisdictional challenge, a forum non conveniens challenge lies within the broad discretion of the court. On the other hand, a forum non conveniens motion can be granted even if the court has jurisdiction over the foreign party and the subject matter (in fact, it can be granted only if the court has such jurisdiction). The UCCJEA imposes additional requirements for a stay or dismissal for forum non conveniens. It is often advisable to initiate a proceeding in the foreign country before bringing a forum non conveniens motion, as it supports the requirement that the foreign court is a suitable alternative forum.

Finally, a state court may stay an action where a foreign action involving the same parties and claims is already pending. This is not because the foreign action strips the state court of jurisdiction. It does not. In fact, strictly speaking, there is generally nothing prohibiting the two cases from proceeding in parallel. However, state courts will often stay cases in deference to foreign courts as a matter of comity.

Conclusion

Family law attorneys should not be afraid to take a case simply because one of the parties is not in the United States. But neither should they complacently rely solely on their experience with domestic parties. Initiating an action involving a foreign party brings special challenges that must be tackled with heightened diligence. Failure to adequately research, plan, and execute in these cases can have devastating consequences for a client, as well as corresponding financial and professional repercussions for the attorney.

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Ariel Leichter-Maroko is a founding partner of Leichter Leichter-Maroko LLP in Beverly Hills, California. His practice focuses on family law and appeals.