The very first immigrant to pass through Ellis Island was Annie Moore, on January 1, 1892. Over the next 60 years, another 12 million immigrants passed through Ellis Island, looking at Lady Liberty as she welcomed them to their new home. Today, New York City is home to more than 3 million immigrants, many of whom have fallen in love and gotten married at churches, mosques, synagogues, and City Hall.
When any of those same couples wish to divorce, they first need to meet New York’s residency requirements, just as they would in any other state. However, complications can arise when the marriage and the divorce are granted in another country. In 2020, a judge on the Virginia Circuit Court ruled that a Jordanian couple’s divorce, which was obtained in Jordan while both parties were still residing in Virginia, would not be honored in Virginia. Thus, the couple essentially remained married in the US, while divorced abroad.[1]
A brief summary of Alkhairy v. Atoum
The Husband immigrated to America and became a naturalized citizen by 2012. In 2014, he traveled to Jordan where the parties were then married. In 2016, the couple came back to America, and the Wife became a permanent resident. The couple had a child, and lived in Fairfax County, VA.
In September 2018, the Husband filed for divorce using a power of attorney in Jordan and was granted a provisional divorce by the country. In November, after the couple had signed a Marital Settlement Agreement in the United States addressing custody and visitation, the couple signed a General Release Agreement at the Jordanian Embassy in Washington, D.C., which, on November 11, 2018, was incorporated into the final divorce from the Jordan Court.
The Wife filed a lawsuit, “arguing that the Jordanian divorce is against public policy and should not be recognized or granted comity.” The Husband argued that the divorce was finalized and recognized by Jordan, and therefore Virginia should grant comity.
The court ruled in favor of the Wife and did not grant comity. In short, Virginia did not recognize the divorce.
Comity, and the role it plays in this case and other foreign divorces
Comity is “the legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts.” So, when a couple divorces in New York, and one parent moves to New Jersey, New Jersey recognizes – i.e., grants comity – to the decisions rendered by the courts in New York. For example, if the New York court orders spousal support to be paid in the amount of $500 per month, someone cannot just move to New Jersey and claim they no longer have to pay that amount.
Generally speaking, the US grants comity to decisions made by international courts as well, provided both parties were present when the decisions were made, and the decisions do not interfere with the rights of US citizens.
This case, however, is a bit different – namely, because neither the Husband nor the Wife were physically in Jordan, nor were they residents of Jordan at the time the divorce was finalized. Per the decision:
[T]he Jordanian procedures should not be granted comity in this case because there were no reasonable residency and domiciliary requirements prior to the divorce proceedings being instituted. In fact, neither Defendant nor Plaintiff were present at the time the divorce was filed in Jordan or after the provisional divorce was granted through final decree. Thus, this court denies the Defendant’s Plea in Bar and refrains from granting comity to the Jordanian divorce.
Could something similar happen in New York?
Possibly. Residency is, to be blunt, a very big deal. In T.T. v K.A. 2008 NY Slip Op 51213(U) [20 Misc 3d 1104(A)], a couple from Ghana who had a “customary marriage” ceremony (which was “customarily dissolved” later) faced problems with getting the Ghana divorce recognized because neither party resided in Ghana at the time of the divorce, and the wife, who filed the lawsuit, claimed she was not given advance notice as per New York’s laws.
Challenging a divorce granted in a foreign country can be complicated
International divorces, much like US divorces, are complicated and every couple will have its own set of unique challenges. In the broadest, most general terms, if you and your spouse get divorced in a foreign country, New York will likely grant comity for that divorce in consideration of the following factors:
- You were present in the country at the time that country granted the divorce;
- Your presence was voluntary;
- You benefited from the divorce;
- Your ex has legally remarried under the laws of that country;
- You have followed the rules of the divorce decree.
The reality is that if you were married and/or divorced in another country, and you wish to challenge the decree here, or ask a judge not to grant comity, the process may be complicated.
Berkman Bottger Newman & Schein LLP handles complex divorce litigation for clients throughout New York. Please call us at (212) 466-6015, or reach out to us through our contact form to learn more about our services. We maintain offices on 5th Avenue in Manhattan, in White Plains, and in Bergen County, New Jersey.
[1] See Alkhairy v. Atoum Case No. CL-2019-14379 (Va. Cir. Ct. Mar. 11, 2020).