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November 01, 2020 From the Editor in Chief

From the Editor in Chief

Kathleen A. Hogan

The process of forming, defining, or disentangling family relationships is likely to be a familiar one to most readers. When an international element is added to the mix, whether in the form of a non-citizen party, a litigant or child residing outside the US or money or assets located outside the country, practitioners often find themselves in unfamiliar territory. The potential issues go far deeper than the logistical challenges of finding interpreters, translating documents, or juggling the need to schedule calls or other events involving participants on the other side of the world.

The views of the rights and duties that arise in a marriage, and the property and other rights that the spouses may have during the relationship or upon its termination, differ so substantially in other countries that no safe generalizations are possible. There are similarly wide variations in the steps necessary to enter into a valid prenuptial agreement. Peter Walzer has written “International Prenups: A World View.” His article addresses the concerns involved when the agreement needs to be multi-jurisdictional in scope. As the author notes, this is an area where variations between jurisdictions ca be so great that it may be necessary to have sections (or even entire agreements) drafted by separate attorneys in each country.

The so-called “green card” marriage, the plight of couples separated by the requirements of the immigration system and other difficulties faced by international couples have been the subject of countless novels and movies, many filled with good story lines but few facts. Maurice Goldman has provided a more factual treatment of the subject in his article, “For Better or Worse? Complexities of Marriage-Based Immigration.” The author lays out the many elements that must be considered when embarking on this journey, including fiancé visas, consular processing, adjustment of status, and the need to keep a constant eye on the extremely complex and ever-changing U.S. immigration system. He also offers readers a helpful checklist of documents and forms to be submitted for marriage-based adjustment of status.

Access to a valid marriage certificate or license may seem like a “no-brainer” in a family law proceeding in the United States, but what if your client was married abroad? Lindsay V. Mason’s article called “What Constitutes a Valid Marriage?” explains possible options when valid proof of marriage is not available or when there is a problem with the license or other marriage document the client has. She describes the types of circumstances that require you to establish a legally recognized marriage, including when applying for a visa based on marriage to a U.S. citizen, inheriting from a deceased intestate spouse, or applying for government benefits.

Ariel Leichter-Maroko has provided an article called “Entering the Forum Shops: How to Initiate a Family Law Action against a Foreign Party.” Initiating an action involving a foreign party brings special challenges that must be tackled with heightened diligence. Knowing what to do at the early stages of such a case can have a huge impact on its outcome. 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.

Rhonda Wasserman addresses “Family Law Disputes Between International Couples in U.S. Courts.” The author asks the essential question of how American courts handle family law disputes that arise between these international couples. Topics include state court jurisdiction, division of property, prenuptial agreements and choice-of-law clauses, child custody, recognition of foreign divorces, deference to pending divorce actions filed abroad and forum non conveniens.

The effort to obtain a “home court advantage” is common in international cases involving children. However, that battle is not one in which the winner of the race to the courthouse automatically has a superior position. Stephen Cullen sheds light on the legal and regulatory hurdles divorcing couples engaged in child custody disputes across international borders face in an articled called “The International Family and Litigation.” He discusses the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) preference for the “home state” and the concept of “habitual residence” which is the focus for the Hague Convention. Cullen addresses the Supreme Court’s recent Monasky v. Taglieri decision which gives insight into how a U.S. court might determine a child’s habitual residence in a Hague case. He also offers useful practice tips for the left-behind parent and the removing parent.

Practically any time there is a dispute about custody of a child there will also be a dispute about establishing, paying or collecting support from that child. Michael S. Coffee has written “International Child Support Issues with a U.S. Element.” The article details the six categories of international child support issues that family law practitioners are most likely to encounter, including the establishment, enforcement, and modification of child support orders. The similarities and important differences between international child support issues and interstate issues are also addressed.

As most practitioners know, issues regarding the residence of or frequency of contact with children carry an emotional element far in excess of what may be encountered in a purely financial dispute. In an article called “Mediating International Child Abductions,” Melissa Kucinski delves into global family mediation and the thorny and emotional issues unique to international child abductions and custody disputes. Such cases can mean expensive, exhausting, and simultaneous litigation in multiple countries with few guarantees that any court order will be enforced. The author explains how the Hague Conference on Private International Law and International Social Service provided a framework for handling such cases but left much unresolved, making litigation even harder. Learn about the benefits of using mediation in cross-border cases, the need to look outside one’s jurisdiction for a mediator with all the necessary skills required in a complex cross-border case, and the special caution needed in using mediation in multi-jurisdictional situations.

The number of cases in which a party suspects there are offshore accounts or assets is typically far greater than the number of cases in which those accounts or assets can be located. However, the task is not always hopeless. Matthew D. Lee has provided an article called, “Uncovering Offshore Assets: Using U.S. Tax Reporting Requirements as a Discovery Tool.” The author shares how the wave of tax transparency sweeping the globe the past decade, precipitated in the United States by the IRS’s 2009 crackdown on hiding assets in offshore tax havens, is helping family law practitioners, who once searched in vain for such assets. The eradication of most tax havens and the repeal of bank secrecy laws have provided access to previously unavailable information about offshore assets, making U.S. tax returns and related forms critical discovery tools that should not be overlooked.

Elaborating on Matthew Lee’s look at discovery of offshore assets, CPA Adam Poutasse and forensic accountant Aliah Molczan have written “Foreign Asset Reporting and Taxation Overview.” The authors summarize important tax reporting and disclosure requirements for family law practitioners to be aware of, including foreign assets, taxation of individuals, foreign partnerships, foreign corporations, foreign inheritance and trusts, reporting and noncompliance, and divorce considerations.

Family law practitioners in military communities face a barrage of different issues when it comes to separation and divorce. “International Military Divorce” is addressed by Bryce D. Neier.

This short article covers some of the critical areas family law attorneys should pay heed to when representing a member of the U.S. military or a military spouse. State law governs divorce, but certain important exceptions apply for servicemembers and fall within the purview of the Department of Defense, including those dealing with military family support regulations, Survivor Group Life Insurance (SGLI), Survivor Benefit Plan (SBP), TRICARE health insurance, and custody cases and spouse service of process under Hague Conventions.

ART practitioners often face international issues. Sara R. Cohen and Mathilde Foucault address “Who Goes on the Child’s Birth Certificate for International Two Dad Families When a Child Is Born Through Surrogacy in the United States?” American lawyers need to consider how parentage and citizenship will play out for intended parents (IPs) back home in all their international surrogacy cases; but when two fathers are involved, knowing who to list on the child’s birth certificate can be tricky. Should both intended fathers’ names appear on the birth certificate, only the genetic father, or the genetic father and the surrogate? The answer varies country to country. Sara R. Cohen and Mathilde Foucault consulted with artificial reproduction technology law practitioners around the globe to provide a brief overview of what birth certificates should look like for two-dad families in the UK, Australia, Canada, France, Spain, Italy, New Zealand, Switzerland, Hong Kong, and Israel.

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Kathleen A. Hogan is a principal with McGuane and Hogan, P.C., in Denver, Colorado, and Editor in Chief of Family Advocate.