PR 06210.055 Wisconsin
A. PR 82-015 Validity of Haitian Divorce in State of Wisconsin - Claim of Evelyn V. G~ - W/E Ned E. G~ SSN ~ -- Divorce Decree from a Foreign Country
DATE: June 17, 1982
DIVORCE -- Recognition of Foreign Divorce
Where a party travels to a foreign country for the purpose of circumventing the procedure and policy of the State of domicile, the court of the foreign country does not have jurisdiction of the subject matter and thus; the decree is not recognized in the State
(G~ Ned E., ~- RA V (H~ ) to ARC - 6/17/82)
You have requested our assistance in determining the validity of a 1981 Haitian divorce decree.
We understand that Evelyn G~ and Allen T~ were married in Oak Creek, Wisconsin on February 19, 1981. On July 17, 1981 the couple arrived in Haiti where on July 20, 1981 they were granted a judgment of divorce on the grounds of "incompatibility of character." The divorce decree indicates and Ms. G~ admits that both parties were residents of Wisconsin at the time. She states that they went to Haiti because it was "cheaper and faster."
Based upon a recent opinion from this office. 1_/ pertaining to Wisconsin's recognition of a 1975 Haitian divorce, you concluded that Ms. G~ divorce is not valid. Ms. G~ and her attorney, citing Wisc. Stat. §767.21, argue that under the Wisconsin Divorce Reform Act of 1977, a Haitian divorce granted to Wisconsin residents would be recognized in Wisconsin. They cite no other authority and make no other arguments except to assert that since the divorce was not obtained "to avoid any of the laws of the state of Wisconsin" it is valid. We do not agree. We conclude that this divorce is not valid in Wisconsin.
Prior to the passage of the Wisconsin Divorce Reform Act of 1977, a Wisconsin divorce could be granted only upon a showing of statutory grounds. Wisconsin statutes specifically refused to recognize divorces from foreign jurisdictions which were not based upon one of the grounds available under Wisconsin law. The relevant statute provided:
[I]f any inhabitant of this state go into another state, territory or country for the purpose of obtaining a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state. Wisc. Stat. §247.21 (1959).
The 1977 Act, which eliminated the requirement of demonstrating grounds for divorce, changed this provision to the following:
(2) Actions in courts of foreign countries. Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relating to child custody, by a court of competent jurisdiction in a foreign country, in accordance with the principles of inter- national comity. (emphasis added) Wisc. Stat. §767.21
Claimant, in her argument, implies that this change demonstrates a legislative intent to liberalize the state's recognition of foreign divorces. However, in enacting the 1977 statute the legislature emphasized that it did not intend to ease any of the procedural requirements for obtaining a divorce:
This act is not intended to make a divorce, annulment or legal separation easier to obtain. Its sole purpose is to promote an equitable and reasonable adjudication of the economic and custodial issues involved in marriage relationships. L. 1979 c.196 §49(4)
Ms. G~ own statements indicate that she wished to avoid the procedural requirements of Wisconsin law. It was "cheaper and faster" to go to Haiti. To conclude that such a divorce is valid would, in effect, made a divorce easier to obtain, contrary to legislative intent.
Moreover, even without considering this legislative history, the statute, on its face, does not support the claimant's position. The statute states that recognition of foreign divorces would be "in accordance with the principles of international comity." International comity does not require recognition of foreign divorces where the parties have sought to avoid the procedural requirements of the state of domicile. Further, comity requires that the foreign court have jurisdiction. As has been noted in a prior opinion:
[Foreign decrees] may be recognized on the basis of comity if the domestic court is satisfied that the foreign court had jurisdiction, the ground for divorce are consistent with policies of the forum state, and due process was followed. Ordinarily, domestic courts will not recognize a divorce obtained, in a foreign country if neither spouse had a domicile in that country. (emphasis added) N~ C~ , ~, RA IV (S~ ) to Reg. Rep., SSA IV (3/5/7 3).
Wisconsin has codified this jurisdictional requirement. Under the provisions of Wisc. Stat. §767.22, the Uniform Divorce Recognition Act, a foreign court must have subject matter jurisdiction for the divorce to be considered valid. Where the parties are domiciled in Wisconsin, the foreign court lacks such jurisdiction. As the Act provides:
(1) A divorce from the bonds of matrimony obtained in another jurisdiction shall be of no force or effect in this state, if the court in such other jurisdiction lacks subject matter jurisdiction to hear the case because both par- ties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.
(2) Proof that a person obtaining a divorce in another jurisdiction was (a) domiciled in this state within 12 months prior to the commencement of the proceeding therefor, and resumed residence in this state within 18 months after the date of his departure therefrom, or (b) at all times after his departure from this state, and until his return maintained a place of residence within this state, shall be prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.
(3) This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
(4) This section may be cited as the Uniform Divorce Recognition Act. (emphasis added)
Although Wisconsin courts have no reported decisions under this section, the Uniform Divorce Recognition Act has also been enacted in California, where, in a similar situation, the appellate court found the divorce invalid. In the case of Sohnlein v. Winchell, 230 Cal. App. 2d 508, 41 Cal. Rptr. 145 (1964), the husband resided in California from 1933 until his death in 1960. In 1959 he went to Mexico for two or three days where he obtained a divorce, his wife having been personally served. At that time, in addition to the Uniform Act, California had a statute in effect which provided a very liberal criteria for the recognition of foreign judgments:
A final judgment of any other tribunal of a foreign country having jurisdiction, according to the laws of such country, to pronounce the judgment, shall have the same effect as in the country where rendered and also the same effect as final judgements rendered in this state. Cal. Civ. Code §1915.
Despite the language of this section, which, significantly, is more liberal than Wis. Stat. §767.21, the California court found that the divorce was invalid. In reaching its conclusion the court stated:
[W]here the foreign jurisdiction has no legitimate interest in the status of the parties, or where the sole purpose of seeking the divorce in the foreign jurisdiction is to evade the policy of this state, the judgment should not be recognized .... 41 Cal. Rptr. at 147.
Here, the Haitian Court had no legitimate interest in the status of the parties. Ms. G~ went there to avoid the costs and time involved in pursing the matter in the appropriate Wisconsin court. Thus, under the rationale of Sohnlein, as well as the plain language of Wisconsin's statutes, the divorce should not be recognized.