In the recent case of In re: Yaman, the New Hampshire Supreme Court issued a lengthy opinion discussing the process to registering a foreign divorce decree in New Hampshire. A foreign divorce decree is only effective in the state or country in which it is issued. It is not effective outside of the state or country in which it is issued unless it is registered in the new state or country.
Registration is important because it will enable a New Hampshire court to treat the foreign decree as if a New Hampshire court had originally issued it. Therefore, the New Hampshire court will enforce the decree as if it were issued in New Hampshire. This is important because the New Hampshire court has such powers as contempt for non-payment of child support or failure to comply with alimony or property division decree, to issuing arrest warrants seizing individuals who may have removed a child into New Hampshire to escape the application of a foreign divorce order.
In almost all cases, divorce decrees that are issued from one of the other 50 United States or territories will be easily registered in New Hampshire. This is because the New Hampshire court can be certain that the other state’s court afforded the parties the due process rights guaranteed by the United States Constitution. The difficulty occurs when a divorce decree from another country is registered in New Hampshire. Most New Hampshire judges will be unfamiliar with the law that was applied in the foreign country and may not have assurance that the foreign country allowed the litigants the same type of rights that would have been afforded a New Hampshire litigant in a New Hampshire courtroom.
The Yaman case involved the registration of a divorce decree that was issued in Turkey. The wife attempted to argue that the Turkish decree should not be registered because she did not have the opportunity to be heard in Turkey and was not allowed access to an interpreter during part of the proceedings, which were conducted entirely in Turkish. The Supreme Court disagreed and held that one of the critical issues to be determined in the registration of a foreign decree is whether the parties had the “opportunity to be heard.” The New Hampshire Supreme Court held that the phrase opportunity to be heard is not analyzed through American standards of due process rather it is a flexible concept which should be applied in a manner which is appropriate under the proceedings in the foreign court. In other words, did the parties have a full and fair opportunity to be heard before an impartial tribunal which conducted the proceeding in its regular fashion? Other factors include whether the parties had the opportunity to be represented by counsel in the foreign court.
The Supreme Court in Yaman concluded that the Turkish proceedings were conducted in the regular course of a divorce proceeding in that country and aside from a procedural hearing, the wife at all times had access to an interpreter who could translate the proceedings into English.
Registering or objection to the registration of a foreign divorce decree in New Hampshire can be a very serious undertaking. If the decree is registered, a New Hampshire court will be obligated to generally enforce the decree as written. The opposing party may not have the opportunity to undue the foreign court’s order. In the Yaman case for example, the mother, who did not have custody of the children under the Turkish Order, she was not allowed to challenge the custody order that had been issued by the Turkish court. The New Hampshire Supreme Court determined that the Turkish court would be the appropriate jurisdiction to modify the custody order. Therefore in registering or opposing the registration of the decree, an attorney should do extensive research into the procedures that were used in the foreign court and to obtain a detailed account of how the proceedings were initiated, whether the parties had access to attorneys, and whether the parties had the ability to communicate effectively with their attorneys.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].