International Marriage and Divorce between the United States and China - Principle of Comity
Updated: Nov 28, 2022
Chinese friends and clients have often asked me about whether they can obtain a divorce in the United States that was entered into in China and vice versa. The short answer is yes. This can be done. But as is always the case with legal issues, there's a lot more to it than that.
Legal Basis for International Divorces
Although no treaty is in place that governs divorces among the various countries of the world, most countries have long ago recognized the principle of comity. "Comity" is defined by the Merriam Webster dictionary as "the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another." Under this principle, US and Chinese courts will typically recognize a marriage or divorce entered into in the other country.
Practical Issues Related to Inter-Country Divorces between the United States and China
There are usually practical issues involved, however, in obtaining the proper documentation to prove that a given marriage or divorce actually took place in the United States or China. Such documentation must be authenticated and/or notarized. In the United States, this can typically be accomplished at the various states' Secretary of State's Office. Such documentation must be sent on to the appropriate Chinese consulate for further processing.
Another common problem for courts in the United States is the inability for a given court to establish personal jurisdiction over an opposing party living in China. This may be the case when the other party does not have "minimum contacts" with one of the states in the United States. In these types of cases, a court in the United States can still dissolve the status of the marriage, but it may not divide property or force the other party to submit to child support payments.
Since 2007, the European Union and several other countries have become signatories of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which provides a centralized and expedited process for the establishment and enforcement of child support and family maintenance among the various signatory countries. Because neither the United States nor China has, to date, entered into this treaty, however, a party seeking to establish a child support order for a party living in the other country, must seek this remedy in the nation that can exert personal jurisdiciton over such party.
It is also important to note, that if one seeks to obtain a divorce in the United States, appropriate notice must be given to the other party through service of process. Notice and the opportunity to respond is built into the foundation of the United States' Constitution and is an indispensible element of our court processes.
If all of this seems complicated, don't worry. My firm is here to help clients navigate through these complex issues. Give me a call or send me an email and I'll help you out.
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