Although amicable agreements can be reached without a third party, a lawyer is essential to guarantee the many elements of a divorce settlement meet the legal requirements and are enforceable cross borders.
Upon a divorce, the distribution of debts and assets follows different rules depending on the state/country.
Some states, like California, rely on community property distribution, dividing the assets and debts acquired during the marriage equally. Others, like New York, apply equitable distribution, however, marital assets are divided ‘fairly’ which does not necessarily mean ‘equally’.
Upon a separation or divorce, an alimony is secured to guarantee that the stay-at-home parent or lower income spouse is comfortable. Absent a premarital agreement, the amount allocated will depend on the paying spouse’s income and finances, as well as the payee’s needs.
Child support will be paid by the non-custodial parent, based on the partie’ incomes. Although New York guidelines cap the parents’ incomes (currently at $154,000) the judges may take into account other factors, such as the family lifestyle, children’s ages, health and needs, parenting time and other expenses incurred by the non custodial parent, or domestic violence.
Restraining orders are common in divorce cases, to keep spouses/partners from behaving in certain ways and protecting a victim of violence from a dangerous person.
A civil restraining order (not criminal in nature) can be followed or preceded by domestic violence criminal charges. When a matrimonial case is intermingled with criminal charges, New York created a unified matrimonial and criminal judge who will handle both aspects of the case. This is called the Integrated Domestic Violence Court.
Children are not the property of their parents. The judge will always seek the best interests of the children when making decisions. Ideally – and unless a parent is unfit – this means that both parents should be involved in their children’s lives as much as possible.
Upon a separation or divorce, a party may want to relocate to her/his origin home. Although this is not an issue as long as only the spouses are involved, it will look very different if children are involved. In such a case, a parent may not relocate with the child without the prior consent of the other parent or the judge.
Relocating with your children to another state or abroad, without securing the consent of your spouse may be qualified as a child abduction. If the child was abducted from his/her country of habitual residence to another country and that country is a party to the Hague Convention on the Civil Aspects of International Child Abduction, then the child may be returned promptly to his/her country of habitual residence, which will be considered as the one having jurisdiction to deal with the custody of that child.
Spousal support is provided during the divorce proceedings and after the divorce, for a fixed number of months or years. Although New York established guidelines to calculate spousal support, the judge has great discretion, depending on the length of the marriage, the current and prospective income of each party, their sacrifice during the marriage, etc.
New York, like many U.S. States on the East Coast, is an Equitable Distribution State. Meaning that, although during the marriage, each spouse can manage his/her assets unilaterally – like in the French ‘separation of assets’ regime – at time of divorce, marital assets are split equitably.
In the western and great part of the eastern worlds, one can only be married once at a time, and bigamy is considered a violation of public order. A divorce is necessary for anyone who wants to eventually remarry. Divorce, as marriage, constitutes an important change in one’s personal status but usually has also financial consequences in terms of splitting assets and supporting one’s former spouse.
Under French law, absent a nuptial agreement, the matrimonial regime depends on the place of installation of the first common residence after marriage. For example, in the absence of a contract, two French spouses married in France but settled in the United States at the time of the marriage or following the celebration, will be subject to the American law of the State of their first common residence.
Whereas there is only one kind of judge in France – “Juge aux Affaires Familiales”, sitting in the “Tribunal de Grande Instance” – ruling on divorces or parental responsibility cases, New York State uses two courts – the State Supreme Court that deals with matrimonial issues (divorce) and the State Family Court that deals with family issues outside of a divorce (custody, alimony, etc). Although the State Supreme Court may also decide on parental responsibility, spousal temporary or final maintenance in the frame of a divorce, the State Family Court may never rule on a divorce.
As a member of the European Union, a ‘Juge aux Affaires Familiales’ will check if he has jurisdiction over your divorce and over your children by implementing the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction, recognition and enforcement of judgments in matrimonial affairs and matters of parental responsibility –Brussels II Bis.
Regarding divorce, separation and marriage annulment, the main criteria of Brussels II Bis is the residence of the spouses and, maybe additionally, their common nationality (article 3). Regarding parental responsibility, the criteria is the child’s habitual residence (article 8).
New York courts apply Domestic Relations Law (DRL) 230 to decide whether they has jurisdiction over the divorce of the parties. The criteria is the residence of the parties, the duration of which differs from 2 years, 1 year or less depending on how many parties still reside in the state and other criteria.
In custody cases, New York courts apply the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). They have jurisdiction if NY is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent continues to live in this state.
If the New York judge considers that it has jurisdiction over a subject-matter, he will apply the appropriate US federal, state and city laws.
In contrast, the French judge may consider applying either his domestic law or a foreign law, depending on the international rules of European Regulations applicable to all EU Member States.
The Uniform Interstate Family Support Act (“UIFSA”) has been adopted in every State. Child support is set by the court with personal jurisdiction over the paying parent.
New York’s version of the law may be found in the New York Family Court Act Article 5-B.
Furthermore, if New York issues a child support order under New York law, New York will continue to have exclusive jurisdiction over the order, provided the child or one of the parties still lives in New York or consent has not been given for another state to assume jurisdiction.
In New York, a matrimonial action is commenced by the filing of either a summons with notice (CPLR 232) or a summons and verified complaint (CPLR 304), along with the automatic orders listed under DRL 236.
Before the divorce is ordered, either the Family Court (in the absence of a divorce action) or the Supreme Court may order Spousal Support. The Supreme Court judge ruling on the divorce may also rule on temporary or permanent spousal maintenance either in the final judgment or by orders in the course of the proceedings (DRL 236).
In the event of a default from the payor spouse or parent, the payee may either get an income execution order from the court, or (if child support also needs to be paid) ask the Support Collection Unit (SCU) located 151 West Broadway, 4th Floor, New York, New York 10013 to collect the money for you.
At the time of divorce, the NY judge may determine a Distributive Award for one of the spouses, depending on the spouses marital or separate property.
Unless there was a Prenuptial or Postnuptial Agreement stating otherwise, separate property shall remain such and marital property shall be divided equitably following 14 factors listed under DRL 236 (B) (5) (d).
A financial disclosure by both parties of their respective financial situations is compulsory, through the provision of a Sworn Statement of Net Worth, as well as other financial documents such as bills, pay stubs, receipts, W-2’s and other papers which back-up the information put on the financial disclosure affidavit or statement of net worth.
For a judgment to be enforced in another country, it needs to be rendered by a court that has both direct and indirect jurisdiction on the matter, i.e. the rendering court considered it had jurisdiction on the matter, and the requested court considered that the rendering court did have jurisdiction. Judgments also need to be valid, final and on the merits.
The Uniform Child Custody Jurisdiction and Enforcement Act (DRL75) states that “A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this title and title two of this article.
Except as otherwise provided in subdivision three of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced under title three of this article.
A court of this state need not apply this article if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights”.
UCCJEA Section 303 states a duty to enforce a child custody determination of a court of another State.
France may easily recognize and enforce a judgment rendered in another Member State (Art 21 of Bruxelles II Bis with Articles 39 or 41 Certificates). However, regarding non-EU-Member States like the US, France will require, after verifying the U.S order bare opposability, that a special proceedings, called “procédure de exequatur”, be followed for this order to be enforceable. French Courts will check that 3 conditions are met: a) Indirect jurisdiction of the foreign judge; b) Conformity to Public Policy; c) Non-fraudulent action.