Dual Military - Divorce/Child Custody Issues


#1

Sir/Ma’am,
We’re both dual active military serving the United States Air Force; Married: Goldsboro, NC. Anyways, I’m due to PCS out of Italy in couple months. During my leave, I found out my spouse filed a divorce through the Italian Court System but found out it was not true it was Child Support Order. In my defense is that I did not have any notification till the last minute before I left. Can Italy divorce us? The people I’ve talked to around base and off base, claim they can not due to Italian law you have to be separated for 3yrs in order to process a divorce. On top of that my spouse is alienating our child away from me. I’ve made numerous attempts to schedule visitation to see our child before I leave here. I’ve been documenting them through e-mail. Does the state of North Carolina grant foreign divorce from Italy?

  • Ohana

#2

I think it is a good idea to continue e-mailing and documenting your attempts at visitation with your child. I cannot speak on what would be the lawful procedure in Italy for divorce as I am licensed in North Carolina. As far as how North Carolina looks at divorces granted in Italy, I can tell you that marriage and divorce generally are considered matters reserved to the states rather than to the federal government. See, Sosna v. Iowa, 419 U.S. 393, 404 (1975) and Armstrong v. Armstrong, 508 F. 2d 348 (1st Cir. 1974 ). There is no treaty in force between the United States and any country on enforcement of judgments, including recognition of foreign divorces.

RECOGNITION BASED ON COMITY: A divorce decree issued in a foreign country generally is recognized in a state in the United States on the basis of comity (Hilton v. Guyot, 159 U.S. 113, 163-64 (1895), provided both parties to the divorce received adequate notice, i.e., service of process and, generally, provided one of the parties was a domiciliary in the foreign nation at the time of the divorce. Under the principle of comity, a divorce obtained in another country under the circumstances described above receives “full faith and credit” in all other states and countries that recognize divorce. Although full faith and credit may be given to an ex parte divorce decree, states usually consider the jurisdictional basis upon which the foreign decree is founded and may withhold full faith and credit if not satisfied regarding domicile in the foreign country. 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 (Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978); Everett v. Everett, 345 So. 2d 586 (La. Ct. App. 1977); Kugler v. Haitian Tours, Inc., 120 N.J. Super. 260, 293 A.2d 706 (1972); Estate of Steffke v. Wisconsin Department of Revenue, 65 Wis.2d 199, 222 N.W.2d 628 (1974); Commonwealth v. Doughty, 187 Pa. Super. 499, 144 A.2d 521 (1958); Bobala v. Bobala, 68 Ohio App. 63, 33 N.E.2d 845 (1940); Golden v. Golden, 41 N.M. 356, 68 P.2d 928 (1937).

AUTHORITY COMPETENT TO DETERMINE VALIDITY OF FOREIGN DIVORCE IN A U.S. STATE: Questions regarding the validity of foreign divorces in particular states in the United States should be referred to the office of the Attorney General of the state in question. It may be necessary to retain the services of a private attorney if the office of the state Attorney General does not provide such assistance to private citizens. Provide counsel with copies of foreign marriage certificates, divorce decrees and copies of foreign laws concerning divorce which may be available from the foreign attorney who handled the divorce.