V. Foreign Support Agreements
There is a detailed definition of the term "foreign support agreement" in subsection 701(6) of UIFSA (2008). As with the ex officio review by the tribunal, the "Statement of Enforceability," and the possibility of an "Abstract or Extract" of the decision, this is a new concept in domestic family law in the United States that begs for explication. The expression itself, "foreign support agreement," is intended "to make more readily understandable for U.S. bench and bar a process that is denominated as a 'maintenance arrangement' in the Convention." Such instruments, unknown in the United States and many other countries, are common elsewhere, especially in the Scandinavian countries. After considerable discussion, there was consensus in the final Diplomatic Session of November 2007 that it would be a substantial loss for the Convention to exclude these agreements, and Article 30 was unanimously approved.
The Explanatory Report observes that "[g]reat advantages come from the inclusion of these instruments, as there is a growing tendency to pro- mote amicable solutions and to avoid contentious procedures. . . ." The UIFSA (2008) comment to section 708 adds: "In view of the movement towards alternative methods of dispute resolution in the United States, this mechanism provides for recognition and enforcement of a dispute resolu- tion system in some of the likely Convention countries."
What then is this new foreign support agreement that is substantially or entirely negotiated between the parties, rather than the product of adjudication? On first examination, it would appear to be a form of a contract--a contract that has been subject to an official process of authentication in order to be submitted for recognition in the United States. UIFSA (2008) subsection 701(6)(A)(ii) provides that the agreement must have been "(I) formally drawn up or registered as an authentic instrument by a foreign tribunal; or (II) authenticated by, or concluded, registered, or filed with a foreign tribunal. . . ." Subsection 701(6)(A)(iii) requires, as a further condition, that it "may be reviewed and modified by a foreign tribunal."
Most importantly--and this is key--the agreement must be "enforceable as a support order in the country of origin." Therefore, as with applications for recognition and enforcement of a decision, along with the complete text of the agreement, there must be "a record stating that the foreign support agreement is enforceable as an order of support in the issuing country." The Official Comment to UIFSA (2008) section 710 reinforces this point: "To reiterate, the key to enforcement is that the foreign support agreement must be 'enforceable as a decision' . . . . If such an agreement is enforceable only as a contract, it will not fall within the scope of this section."
A. Challenges to a Foreign Support Agreement
For most practical purposes, the foreign support agreement will be recognized in the United States and enforced as if it were a decision of a tribunal in a Convention country. There are, however, several notable differences. The agreement is subject to challenge, but the grounds for refusal are limited. Only three of the Article 22 bases for refusing recognition and enforcement apply. The first is incompatibility with the public policy of the state addressed. The second is "fraud or falsification," similar to the principle in Article 22(b). The third parallels the principle of "incompatibility" with a prior decision between the same parties and having the same purpose as found in Article 22(d). Article 30(5)(b)(ii) further permits a challenge or appeal on the grounds of inauthenticity or lack of integrity of the document as in UIFSA (2008) subsection 708(b)(5).
Understandably, there are no considerations of lack of notice and opportunity to be heard, as the parties presumptively have collaborated jointly in order to enter upon their own voluntary agreement. Similarly, there are no questions concerning the basis for personal jurisdiction over the parties. There is no provision equivalent to UIFSA (2008) subsection 708(c)(1) to delay dismissal of the proceeding in order to allow time for the parties to obtain a new agreement or support order, but a proceeding will be suspended during a challenge or appeal pending in "another state or a foreign country."
There appears to have been one possible oversight in the drafting of UIFSA (2008) section 710--it does not include payment of the debt as a possible challenge or appeal. This is a defense noted generally at subsection 708(b)(8) for challenges to decisions. Although Article 30 does not mention specifically the payment or fulfillment of the debt as a possible challenge or appeal to a maintenance arrangement, there is catch- all language in Article 30(5) that includes mutatis mutandis any provisions for recognition and enforcement under Chapter 5 of the Convention that are not explicitly excluded. It would, thus, follow that the Article 23(8) ("fulfilment of the debt") basis for refusal of recognition of a decision should apply as well to a challenge to a foreign support agreement if there is a claim for arrears.
One notable distinction between a foreign decision and a foreign support agreement is that, whereas both are subject to recognition and enforcement in the United States, the latter cannot be modified in this country. The definition of a foreign support agreement in UIFSA (2008) at subsection 701(6)(A)(iii) specifies that the agreement may be subject to being "reviewed and modified by a foreign tribunal," but there is no provision under UIFSA (2008) allowing for modification of such an agreement. It does not appear that a foreign support agreement can be modified at all under the Convention; rather, it would have to be treated under the domestic law of the State of origin. Article 30(2) states that "the term 'decision' includes a maintenance arrangement" for purpose of applications under Article 10(1)(a), (1)(b), and (2)(a) for recognition or recognition and enforcement; there is no equivalent provision for allowing applications to modify maintenance agreements to be treated as decisions under Article 10(1)(e), (1)(f), (2)(b), and (2)(c). UIFSA (2008) section 711 similarly only addresses modification of a Convention support order.
B. Public Policy Challenges to a Foreign Support Agreement
Another potentially important distinction in the United States concerning enforcement of foreign support agreements is that there appears to be a broader basis for refusal to recognize and enforce the agreement on public policy grounds. It was argued in the first part of this article that due process considerations were added to UIFSA (2008) subsection 708(b)(1) to deliberately emphasize that the most plausible challenge to a decision in the United States, on public policy grounds, is a failure "to observe minimum standards of due process, which include notice and an opportunity to be heard." This is language that is not found in the Convention, but it was added by the drafters of UIFSA (2008) for some apparent purpose. It was not included, however, in the otherwise identical statements of the public policy exception for recognition of foreign support agreements. This must also have had some logical intention. The Official Comment does not explain the difference, but, as noted above, due process is simply not a pressing concern when the parties negotiate and agree upon their own solution. What, then, does "manifestly incompatible with public policy" mean in this context, without the overarching due process concerns?
Consider, first, the example of a public policy exception suggested by the Department of State:
[A] U.S. competent authority could decline to recognize and enforce a deci- sion against a left-behind parent in an abduction case where the child had been wrongfully taken or retained, on the grounds that recognition and enforcement of such decision would be manifestly incompatible with the U.S. public policy of discouraging international parental abduction.<\/blockquote>
This result may, arguably, be more likely to occur when the parties have entered into their own agreement, without the benefit and oversight of a tribunal's review. It is not difficult to imagine what extrajudicial mischief could occur when one party has an unfair negotiating advantage or introduces an issue wholly unrelated to the provision of child support. For example, a noncustodial parent might agree to drop a custody or visitation dispute in exchange for a severe compromise in the agreement for child support. Would such an agreement, with an egregiously low support amount, be considered to be manifestly incompatible with public policy?
While there are strong arguments for the narrowest interpretation of the public policy defense at UIFSA (2008) subsection 708(b)(1) when challenging a decision, those arguments may not hold up so well when challenging a private agreement negotiated between the parties--although there may be fewer challenges. Paragraph 561 of the Explanatory Report offers little guidance other than to emphasize that "a narrow basis for ex officio review has been adopted, which would permit refusal only for reasons of public policy." It is improbable that the tribunal, acting on its own motion, will refuse recognition of the agreement under UIFSA (2008) subsection 710(c), but perhaps the tribunal will be somewhat more inclined to do so when the respondent raises public policy as a defense under subsection 710(d).
C. Looking Forward--Challenges for State Legislation
This is an entirely new area of jurisprudence in the United States. In theory, the foreign support agreementisanamicable (and equitable) solution voluntarily agreed upon by the parties. There should be few challenges. When it occurs, litigation, for the most part, will be handled substantially the same as when challenging decisions. Unless excluded under Article 30(5), the provisions of Chapter V for recognition and enforcement are applicable as they may be appropriate, but a few disconnects are obvious. For example, Article 27, binding a competent authority to "the findings of fact on which the authority of the State of origin based its jurisdiction," may have no application at all, unless, perhaps, "jurisdiction" for authentication and registration of an agreement requires a finding of residency. Does Article 28's "no review of the merits" have meaning in this context? Are there "merits" in a maintenance agreement? What is a review on the merits when the parties have made their own agreement to the quantum of support owed? If the tribunal considers that the amount agreed upon is unconscionably small, or large, can the tribunal refuse recognition as an intolerable result in violation of public policy? That would almost certainly be an abuse of authority when conducting a review of a decision entered by a tribunal in another country. It would assuredly not be allowed in the United States when considering the support order entered in another state. As tribunals develop experience in recognizing and enforcing foreign support agreements and litigation ensues, there may eventually be a need to consider further legislation and possibly even a "review and modification" procedure in a forum of this country.
The United States continues to move in the direction of voluntary settlements, online self-help resources for families, and pro se procedures to resolve simple legal matters efficiently and with minimal cost. Perhaps consideration should be given to adopting some form of authenticated "support agreements" in this country. Mandatory state guidelines for setting the amount of support orders are already universally in effect. Standards could be established for permitting some deviation from the guidelines, and simple review procedures might be warranted as part of the authentication and registration process. The hypothetical situation posed in footnote 102 of this article is not unrealistic. An American couple obtaining a divorce in a foreign country, under local laws and procedures, may already be able to enter into a formal maintenance agreement in that country. When one party returns to the United States, that agreement should be subject to recognition and enforcement, although it could only be modified in the country of origin. It may not be long before state legislatures in the United States consider the advantages of such agreements.
There is only one substantive jurisdictional provision in the Convention, and it is the rule of negative jurisdiction. The rule in Article 18(1) prohibits a debtor from seeking modification of a decision, or entry of a new decision, in any Convention country "as long as the creditor remains habitually resident in the State where the decision was made." The rule applies whether the debtor applies through the Central Authority under the Convention or directly to the competent authority. The Official Comment to UIFSA (2008) section 711 makes the obvious point that "the protection against modification is accorded only to the obligee, and not to the obligor." In other respects, the Comment notes that this limitation placed on seeking modification "strikes a familiar note" for practitioners in the United States. It imposes a requirement very similar to UIFSA (2008) subsection 611(a)(1)(A) barring modification of another state's order if either the obligee or the child continues to reside in the issuing state, but it does not extend the same prohibition if the creditor moves and seeks modification in another country while the debtor continues to reside in the issuing state.
The Convention permits exceptions to the rule that are reflected in UIFSA (2008) subsections 711(a)(1) and (2). The creditor may submit to jurisdiction "either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity" or, if the foreign tribunal that issued the decision cannot or refuses to exercise jurisdiction, a new or modified order may be issued. Subsection 711(b) addresses the exception allowed under Article 18(2)(d) when the tribunal in the United States cannot recognize the foreign decision. The Official Comment states: "Subsection (b) requires a state tribunal to issue a new child-support order if the Convention order was founded on child-based jurisdiction, the foreign tribunal lacked personal jurisdiction over the obligor, and there is a request to establish an order in accordance with Section 708." That statement is correct. If the tribunal in the United States cannot recognize a foreign decision because that tribunal lacked personal jurisdiction over the debtor (i.e., subsection 708(b)(2)), then it is required to take appropriate measures to establish a new order under subsection 708(c)(2). There is, however, a problem in construing the meaning of UIFSA (2008) subsection 708(c) that warrants further explanation.
UIFSA (2008) subsection 708(c) states that if a Convention order cannot be recognized under subsection 708(b)(2), (4), or (9), then "(1) the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new . . . order; and (2) the [IV-D agency] shall take all appropriate measures to request [the issuance of a new order]." The United States is only obliged under the Convention to take such measures to establish a new decision for the benefit of a creditor when it is unable to recognize a decision where the foreign tribunal lacked personal jurisdiction over the debtor (i.e., subsection 708(b)(2)). If there is a refusal to recognize the decision on other grounds (e.g., subsections 708(b)(4) or (b)(9)), it may be reasonable for the tribunal to delay dismissal under subsection 708(c)(1) to allow the applicant reasonable time to request establishment of a new order, but the governmental agency in this country should not be obliged to proceed automatically to seek an order without communicating with the Central Authority in the requesting country. The most absurd example of the result of a literal reading of subsection 708(c)(2) would be in a proceeding where the tribunal had refused recognition of the foreign decision because it was obtained by fraud (i.e., subsection 708(b)(4)). "Fraud is deliberate dishonesty or deliberate wrongdoing. Examples would be where the plaintiff deliberately serves the writ, or causes it to be served on the wrong address or where the party seeks to corrupt the authority or conceals evidence, etc." In that situation, "appropriate measures" for the government agency to take would entail sending prompt notice to the Central Authority in the requesting country that the creditor had been found to have made an application for services under the Convention based upon a fraudulent decision.
The first step in seeking modification of a foreign child support order is registration of the order. If it is from a Convention country, the procedures under UIFSA (2008) section 706 will be followed for recognition of the decision. If the application to modify was made by a creditor, or the creditor submits to the jurisdiction of the requested country, Article 18(1) does not apply.
Modifications, whether permitted and on what terms, are determined by the law of the jurisdiction where the relief is sought. Generally, a change of circumstances is required at a minimum. In the United States, an application to reduce or cancel arrearages would not be granted, but that may not be the rule in other countries. It would not appear to be possible to modify the duration of the period during which arrears may be enforced, as that is determined by either "the law of the State of origin of the decision or by the law of the State addressed, whichever provides for the longer limitation period." Duration of the period of the obligation to pay current maintenance is determined by the State of origin and, likewise, would not appear to be modifiable. Equivalent rules apply in the United States preventing modification of the duration of obligation under the order of another U.S. state.
Because each country applies its own rules for modification, it should be noted that "[t]he decision to be modified could have been made in a Contracting State or a non-Contracting State, but whether it can be modified depends on the law of the requested State." This would seem, initially, to contradict the rule that "a decision for which recognition, or recognition and enforcement under the Convention is sought must, in accordance with Article 20(1), be a decision made in a Contracting State." The apparent contradiction is explained in footnote 106 in the Explanatory Report. In summary, Article 10(3) specifies that applications to modify (Article 10(1)(e), (1)(f), (2)(b), and (2)(c)) are determined under the law and jurisdictional rules of the requested State. Thus, the law of the requested state applies to modifications, and any decision (including one from a noncontracting state) may be subject to modification if permitted under the law of the local forum. There is a different standard under the Convention for applications for recognition or recognition and enforcement and for enforcement only (Article 10(1)(a) and (b)). Article 20(1) requires that "[a] decision made in one Contracting State . . . shall be recognized and enforced in other Contracting States. . . ." This is a mandatory provision and the only grounds for refusing recognition and enforcement of a Convention country's decision are reflected in UIFSA (2008) section 708.
One final important point of distinction in the 2008 amendments to UIFSA warrants mention. An additional provision was added to section 611, "Modification of Child Support Order of Another State." This change provides a remedy for an inherent disadvantage often confronted by the parties in the United States when both of them leave the state that issued the decision and one of them has moved to another country. Under prior versions of UIFSA, when both parties left the state, the party seeking modification generally was required to "play away" and bring an action in the new state (or country) of residence of the other party (most often the obligor). There was no longer a forum state with continuing exclusive jurisdiction. This presented a serious disadvantage to either moving party if the action was required to be brought in a foreign country. For example, if it was the debtor who moved to another country, the creditor was obliged to seek modification in that country (where arrearages possibly would be subject to revision). Both parties lost the familiarity and advantages of proceeding under the UIFSA rules, particularly continuing exclusive jurisdiction. With no U.S. state continuing to assert continuing exclusive jurisdiction, even if there was no desire to seek a modification in the other country, it is possible that the U.S. citizen, visiting his or her child, might be served and be required to litigate in an inconvenient forum.
The 2008 amendments to UIFSA included a new subsection 611(f): "Notwithstanding subsections (a) through (e) and Section 201(b), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if: (1) one party resides in another state; and (2) the other party resides outside the United States." The 611(f) rule is elegant in simplicity and practicality. It allows the U.S. state that issued the controlling order to remain an available forum where familiar UIFSA rules will apply. Of course, either party is still entitled to use the play away rule and submit to the jurisdiction of the state or country where the opposing party resides.