Divorce in foreign country vs. Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Divorce In A Foreign Country And In Illinois

Divorce in foreign country vs. Illinois

Divorce laws are different all over the world. It can be tempting for a party to an Illinois divorce to say “I don’t like the divorce laws in Illinois. So, I’ll just file for divorce somewhere else.” Filing a divorce in a foreign country may or may not have an impact on any divorce filings in Illinois.

Motion To Dismiss An Illinois Divorce Because A Foreign Divorce exists.

A foreign divorce can allow a spouse in an Illinois divorce to ask an Illinois court to dismiss the Illinois divorce case because there already is a divorce case pending.

“Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief [if] That there is another action pending between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3)

“Section 2-619(a)(3) is designed to avoid duplicative litigation and is to be applied to carry out that purpose. Nevertheless, even when the “same cause” and “same parties” requirements are met, section 2-619(a)(3) does not mandate automatic dismissal. Rather, the decision to grant or deny defendant’s section 2-619(a)(3) motion is discretionary with the trial court.” Kellerman v. MCI Telecommunications Corp., 493 NE 2d 1045 – Ill: Supreme Court 1986

Illinois courts have no obligation to acknowledge or enforce a foreign divorce.

“The full faith and credit clause of the Federal Constitution (Art. IV, Sec. 1, U.S. Constitution) does not require an Illinois court to recognize or enforce the decree of a foreign country.” Hager v. Hager, 1 Ill. App.3d 1047, 1050, 274 N.E.2d 157.

“If a final judgment entered by a foreign court need not be enforced by the courts of Illinois under constitutional principles of full faith and credit, then it should necessarily follow a fortiori that the mere pendency of a prior action in the court of a foreign country should not constitute a bar to further proceedings before this court.” Farah v. Farah, 323 NE 2d 361 – Ill: Appellate Court, 1st Dist. 1975

“A decree from another jurisdiction will be recognized and enforced in Illinois if it is entitled to full faith and credit.” In re Marriage of Murugesh and Kasilingam, 993 NE 2d 1109 – Ill: Appellate Court, 3rd Dist. 2013

Some foreign courts can be recognized by Illinois law under the concept of comity.

Comity is “a recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.” Clubb v. Clubb, 402 Ill. 390, 399-400, 84 N.E.2d 366 (1949)

“Under the doctrine of comity, courts may, but are not required to, defer to the laws or interests of a foreign country and decline to exercise jurisdiction that is otherwise properly asserted. When a properly filed action has a legitimate and substantial relationship to Illinois, the action should not be dismissed pursuant to principles of comity” In re Marriage of Murugesh and Kasilingam, 993 NE 2d 1109 – Ill: Appellate Court, 3rd Dist. 2013 (citations omitted)

The laws of the country that the foreign divorce is occurring in must be substantially similar and have substantially the same effect as Illinois’ laws for Illinois to recognize a foreign court’s authority.

“Recognition [of a foreign divorce] may be withheld for various reasons, as where it is contrary to the public policy of the state where the recognition is sought, where the country in which it was rendered does not recognize American decrees, where it is invalid or wanting in integrity by reason of lack of jurisdiction in the foreign court, lack of domicil in the foreign country, where it was obtained in bad faith, by fraud or by taking advantage of the foreign law on the part of one who left the state and went to the foreign country for that purpose, where the operation of the decree would do wrong or injury to the citizens of the state, or where its recognition would work injustice to an innocent party.” Hager v. Hager, 274 NE 2d 157 – Ill: Appellate Court, 4th Dist. 1971

The whole point of getting a foreign divorce is to take advantage of foreign laws that are different than Illinois’ laws. So, any contested foreign divorce will, by design, not have comity with Illinois’ laws.

Inconvenient Forum In An Illinois and Foreign Divorce

Another way to dismiss an Illinois divorce in favor of a foreign divorce is to invoke the doctrine of Forum Non Conveniens.

“Forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice. This doctrine allows a trial court to decline jurisdiction when trial in another forum would better serve the ends of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill.2d 430, 441, 302 Ill.Dec. 363, 848 N.E.2d 927 (2006)

 “A defendant seeking transfer is required to show not only that the plaintiff’s choice of forum is inconvenient but that the defendant’s choice is the substantially more appropriate forum. Unless the defendant demonstrates that the relevant considerations “overwhelmingly favor” a dismissal, the court should deny the defendant’s motion.” In re Marriage of Murugesh and Kasilingam, 993 NE 2d 1109 – Ill: Appellate Court, 3rd Dist. 2013

The first question to ask in any jurisdictional issue is “where do the parties actually live?

“Before weighing the relevant factors, a court must first decide how much deference to give to a plaintiff’s choice of forum…However… where the plaintiff chooses a forum other than where she resides, her choice is not entitled to the same weight” as the choice of her home forum.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011

In deciding whether a case should be removed to a court that is more convenient for the parties and the courts, an Illinois court must weigh the private and public interests.

Private interests to be weighed are “(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious and inexpensive.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill.2d 430, 441, 302 Ill.Dec. 363, 848 N.E.2d 927 (2006)

Public interests to be weighed are (1) the interest in deciding controversies locally; (2) the unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation; and (3) the administrative difficulties presented by adding litigation to already congested court dockets.” Id.

Illinois Children Must Their Custody Decided In Illinois

If a child of the marriage has lived in Illinois in the preceding 6 months before the divorce is filed, the case must proceed in Illinois for the purposes of determining child custody.

“[A] court of this State has jurisdiction to make an initial child-custody determination only if this State 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 or person acting as a parent continues to live in this State” 750 ILCS 36/201

“”Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” 750 ILCS 36/102(7)

Enforcing A Foreign Divorce Judgment In Illinois

If a divorce was actually granted in a foreign country but the party’s assets, children or even the parties themselves live in Illinois, the terms of the foreign divorce decree can only be enforced in Illinois.

The doctrine of comity (as described above) will largely determine whether a court ruling from a foreign country will be acknowledged and enforced in an Illinois divorce court.

Furthermore, the doctrine of Res Judicata will further bolster a claim that Illinois should acknowledge and enforce a foreign divorce decree.

“[O]nce adjudicated by a court of competent jurisdiction, should be deemed conclusively settled between the parties and their privies, except in a direct proceeding to review or set aside such adjudication….The basis of the doctrine of res judicata is that the party against whom the doctrine is raised has litigated or had an opportunity to litigate the same matter in a former action… A former judgment is deemed conclusive not only as to all matters litigated and determined, but all matters which might have been presented to support or defeat a claim.” Drabik v. Lawn Manor Savings & Loan Ass’n, 65 Ill.App.3d 272, 276, 22 Ill. Dec. 13, 382 N.E.2d 333 (1978).

If the foreign court allowed for a fair and just determination, the foreign judgment rendered by that foreign court could be enforced in Illinois.

“Res judicata is premised on the notion that the law affords every man his day in court along with the opportunity to present his case on the issues involved.” Pedigo v. Johnson, 130 Ill.App.3d 392, 394, 85 Ill.Dec. 702, 474 N.E.2d 430 (1985)

“[I]t is essential that a defendant actually be afforded the opportunity to appear, present his case, and be heard.” IN RE PARENTAGE OF AH v. HARLOW H., 69 NE 3d 902 – Ill: Appellate Court, 1st Dist., 5th Div. 2017

The problem is that most foreign court systems don’t apply a civil procedure or jurisprudence that would be interpreted as fair by an Illinois court. Most countries do not use the English common law system that requires due process. So, the doctrine of res judicata is moot when enforcing judgments from an inherently unfair (by Illinois standards) court.

Enforcement of foreign judgments almost always requires a finding of contempt.

“If Illinois courts do not have the authority to punish those who disobey court orders from other States for contempt, they certainly do not have the authority to hold individuals who disobey court orders from other nations in contempt.” In re Marriage of Alush, 527 NE 2d 66 – Ill: Appellate Court, 2nd Dist. 1988

Some orders from foreign countries may be enforced or modified if they involve children who now live in Illinois.

Child custody, parenting time and parental decision orders from foreign countries can be enforced in Illinois.

“[A] child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this Act must be recognized and enforced” 750 ILCS 36/105

Child support orders from foreign countries may be modified in Illinois if the child lives in Illinois.

“[I]f a foreign country lacks or refuses to exercise jurisdiction to modify its child-support order pursuant to its laws, a tribunal of this State may assume jurisdiction to modify the child-support order” 750 ILCS 22/615(a)

“An order issued by a tribunal of this State modifying a foreign child-support order pursuant to this Section is the controlling order.” 750 ILCS 22/615(b)

In conclusion, foreign divorce orders will almost always remain foreign and unenforceable in Illinois with the limited exception of orders as to children.

If you’re dealing with divorce issues in Illinois and there’s a divorce pending in a foreign country or a divorce judgment from a foreign country, contact my Chicago, Illinois family law firm to learn more about what you can and cannot do.