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Your most important concern when you obtain a divorce away from home, is that it will be recognized or accepted  by your state. You do not want to find out years after you obtain your divorce that it is not legal, or that you are still married to your first wife, when you thought you were married someone new.  Yet, this is the risk you face if you obtain a foreign divorce. 

Guam is  a U.S. territory. Federal law requires that all states give "full faith and credit" or recognition to Guam Court Judgments. This is not the case with respect to divorces from a foreign country. US court's are not required to accept divorce decrees from Caribbean nations. Almost every court and Federal agency that has addressed the issue, has found quick Dominican Republic and Haiti Divorces  to be invalid.

On the other hand, every state recognizes that a divorce from one US jurisdiction, must be accepted by every other US jurisdiction.

Full Faith and Credit.

The US Supreme Court in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, held that a US divorce decree is entitled to full faith and credit if both parties appeared in the action, and did not contest the jurisdiction of the court:

"It is clear from the foregoing that, under our decisions, a state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree. Such an attack is barred where the party attacking would not be permitted to make a collateral attack in the courts of the granting state. "

The United States Supreme Court, has made a very simple  test for determining when full faith and credit must be given a divorce decree from another US jurisdiction:

“ the requirements of full faith and credit bar a defendant from ... attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.’ ···” Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 477, 95 L.Ed. 552 (1951), quoting Sherrer v. Sherrer, 334 U.S. 343, 351-52, 68 S.Ct. 1087, 1090-91, 92 L.Ed. 1429 (1948). (Emphasis added).

A defendant participates in a proceeding by entering an appearance. Johnson v. Muelberger, supra. An appearance may consist of filing a plea, answer or demurrer. Stoker v. Leavenworth, 7 La. 390 (1834); C.C.P. 7. One may also appear by signing and filing an instrument entering one's appearance in a suit. Kirk v. Bonner, 186 Ark. 1063, 57 S.W.2d 802, 804 (1933); Mutual National Bank of New Orleans v. Moore, 50 La.Ann. 1332, 24 So. 304, 306 (1898).

In a Guam divorce, both parties file written appearances and consent to the jurisdiction of the court. Further Guam's statutes forbid attacks on the decree by third parties. The Guam divorce therefore is entitled to full faith and credit, and may not be challenged by third parties or other US courts.

Guam Court Decrees, by federal statute, are entitled to full faith and credit the same as other states. 28 U.S.C.A. § 1738. Americana of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431 (3d Cir.1966).

INVALIDITY OF CARIBBEAN  DIVORCES

As a general matter, Dominican Republic and other Caribbean divorces are looked upon with disfavor in the United States. A  U.S. court is not required  to give blind recognition to a foreign decree.  Federal law has been clear for many years that the Full Faith and Credit Clause does not apply to judgments of foreign countries. As stated in Divorce Source,  "the Constitution of the United States does not require that states give full force and effect to divorce judgments of foreign nations. Magner v. Hobby, 215 F.2d 190 (2d Cir. 1954); Watson v. Blakely, 106 N.M. 687, 748 P.2d 984 (1987); Atassi v. Atassi, ___ N.C. App. ___, 451 S.E.2d 371 (1995); Sargent v. Sargent, 225 Pa. Super. 1, 307 A.2d 353 (1973)."

With the exception of New York , those State Court that have looked at the issue, have refused to recognize Dominican Republic divorces. The reasoning of these decisions would apply equally to Divorces from Haiti.  Because of such decisions, the US state department has this warning on its website:

"Many state courts which have addressed the question of a foreign divorce where both parties participate in the divorce proceedings but neither obtains domicile there have followed the view that such a divorce invalid." (US Department of State)

Accordingly, the US Embassy in the Dominican Republic states on their website:

"Before seeking a divorce in the Dominican Republic, U.S. citizens should be aware of possible legal restrictions by their U.S. state of residence on divorces obtained abroad. It is advisable to contact an attorney in your state of residence to determine whether or not the courts of your state will recognize a Dominican divorce as valid." (US Embassy in Dominican Republic.).

The Attorney General or Utah, has also expressed the opinion that a Dominican Republic divorce will not be recognized by US states, where neither party actually lived in Dominican Republic:

"The domestic validity of divorce judgments from foreign countries is not governed by the full faith and credit clause of the Constitution, but by the rule of comity… and a divorce obtained in a foreign country will normally not be recognized as valid if neither spouse had a domicile in that country, even though domicile is not required for jurisdiction by its laws. With the exception of New York , this principle is recognized uniformly in American courts and is applied whether the decree was of the "mail order" type or was rendered on the ex parte application of one party with constructive service on the other or was a bilateral decree based on both parties' voluntary

…(M)y conclusion is that Utah would follow the general rules described above and hold that the Santo Domingo court lacked jurisdiction since neither party was a domiciliary and that the Santo Domingo divorce was thereby without effect. That would make the subsequent marriage of Mr. Hardy in Utah void ab initio, as he had a current wife living from whom he was not divorced." (Utah Attorney General Number 91-011)

One US family law attorney, after researching the issue, warns that US federal agencies also look with disfavor on DR divorces:

"A surprising number of would-be Dominican-divorce parties have pressing income-tax or immigration issues. It should be expected that a Dominican divorce will be extremely carefully scrutinized by tax and immigration officials. Other government agencies (like the Social Security Administration) will do likewise. They are not bound by the Dominican court's assertion of the validity of its own acts... The I.N.S., perhaps to an even greater degree than any other government agency, will question every detail of a Dominican divorce, including such procedural matters as whether and when the decree was "pronounced" after being ordered by the judge. Parties who are motivated by tax or immigration issues should be particularly careful about consulting with counsel (never rely on a mail-order or "paralegal" "service") regarding the treatment that can be expected to be accorded to their divorce." (Connecticut Divorce) (For a Opinion of the Social Security Administration refusing to recognize a Mexican Divorce, click here.)

Now let's look at what US courts have said about DR divorces.

In Adams v. Adams, 869 A.2d 124 ( Vt. ,2005) the Supreme Court of Vermont found a Honduras divorce to be clearly invalid. The court stated:

"The Full Faith and Credit Clause…, does not apply to judgments obtained in a foreign country, and so a U.S. court may, but is not required to, recognize a divorce decree from a foreign country under the doctrine of comity. …

For a court to recognize and give effect to a foreign order, the judgment must have been rendered under a judicial system which provides impartial tribunals and procedures compatible with due process of law, and the issuing court must have had jurisdiction over the defendant sufficient to support rendering such a decision in the state in which the order is sought to be enforced. If these prerequisites have been met, the state court may still decline to recognize the foreign order, if the issuing court lacked subject matter jurisdiction over the action; the defendant was not accorded adequate notice of the proceeding; the judgment was obtained by fraud; the original action or judgment is in conflict with state or federal public policy; the judgment conflicts with another judgment entitled to recognition; or the foreign proceeding was contrary to an agreement by the parties to submit the controversy to another forum for resolution."

In Jewell v. Jewell, 751 A.2d 735 (R.I. 2000) the supreme court of Rhode Island stated

“we unequivocally refuse to recognize the Dominican Republic divorce, or to accord it any comity whatsoever. The ex parte divorce issued by the Dominican Republic , purportedly dissolving the marriage of two people, neither of whom had any connection to that forum, is void as a matter of law as repugnant to the public policy of this state”

In reaching its conclusion, the court specifically stated that the problem with the DR divorces is that it was not from an American jurisdiction, and Rhode Island was not, therefore required “to give full faith and credit to the Dominican Republic divorce decree”.

In Blair v. Blair, 643 N.E.2d 933 (Ind. App. 1994) the Indiana Appellate court flatly “refused to recognize the Dominican Republic decree…” Here also the deciding factor was that the divorce decree was not from a US jurisdiction and it was not entitled to full faith and credit. As the court rightly stated:

"[W]e are dealing with a decree of a foreign nation to which the principles of comity rather than full faith and credit, apply. Ordinarily, recognition of such foreign decrees depends upon whether at least one of the spouses was domiciled in the foreign nation when the decree of divorce was rendered.”

Everett v. Everett, 345 So.2d 586 (La.App. 1977) Court of Appeals of Louisiana also refused to recognize a Dominican Republic divorce, stating:

"We think that the state … should not recognize a quick divorce obtained by its citizens on overnight trips to foreign countries where attitudes and philosophies of the courts, as well as concepts of substantive and procedural due process, are entirely unknown and probably inconsistent with our own ."

Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (N.C.App. 1984) the North Carolina Court of Appeals, followed the reasoning of other US high courts:

"The full faith and credit clause has no application to foreign judgments. … More often than not, however, "many of the American states are likely to refuse recognition [to deny comity] to a divorce decree of a foreign country not founded on" a sufficient jurisdictional basis…

… The great weight of authority in this country is that divorces granted in foreign countries to persons who are domiciliaries of the United States are not valid and enforceable.

…Considering the circumstances of this case, the applicable law, and the important policy considerations, the trial court properly refused to accord legal force and effect to the Dominican divorce decree.

In Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (Neb. 1978) the Nebraska Supreme court refused to recognize a Dominican Republic Divorce, stating:

"The rule adopted by other states is that "bilateral" divorce decrees, rendered upon the physical  presence of the petitioning spouse in the divorcing nation, and the voluntary appearance of the respondent spouse through an attorney, are not entitled to domestic recognition… Regardless of the validity of the decree in the nation awarding it, courts in this country have generally not recognized a foreign judgment of divorce unless…at least one of the spouses was a good-faith domiciliary in the foreign nation at the time the decree was rendered."

In Kalix v. Kalix, 36 Pa. D. & C.3d 30 (Pa. Com. Pl. 1985) a Pennsylvania court reached the same conclusion:

"Under the law, in order for a divorce from a foreign country to be recognized and enforced in this country because of comity between nations, the party obtaining the divorce must have resided in the foreign country for the minimum period of time as determined by the local authority "and that the residency be accompanied by 'domiciliary jurisdiction' i.e., an intent to remain in the foreign jurisdiction.

…The testimony revealed that plaintiff did not have a bona fide residence in the Dominican Republic . In fact, he had no residency in that nation other than a "proxy" representative.

…The divorce obtained … is invalid and of no force and effect for lack of forum jurisdiction…"

In re Schorr's Estate, 409 So.2d 487 (Fla. App. 1981) a Florida court refused to recognize a divorce granted in the Dominican Republic stating:

"States are not required to give full faith and credit to divorces rendered in foreign nations…It has long been held that Florida courts will not recognize a foreign nation's divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was rendered…

…In the instant case, it is clear that Leonard was not a good faith domiciliary of the Dominican Republic…Accordingly, the trial court was eminently correct in refusing to honor the Dominican Republic's decree…"

Kugler v. Haitian Tours, Inc., 120 N.J. Super. 260, 293 A.2d 706 (1972) involved a Haiti divorce. The New Jersey Court found Haiti divorces to be clearly invalid. The court stated:

"Recognition of a divorce decree of a foreign country rests on the doctrine of comity controlled by the public policy of the State whose recognition is invoked. The full faith and credit clause of the Constitution has no application. ...

The interest of the State is too great to warrant recognition of Haitian ‘quickie’ divorces."
 

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For all questions about Guam Divorces, custody or support, ask for attorney Ron Moroni. 1-866-472-1540.