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Additional Information You Must Have Before Pursuing A Divorce in the Dominican Republic

I receive several inquiries each week from people who believe that a Dominican divorce is something they must have. The first thing I always do is try to talk them out of it. Here are some of the issues to consider:

According to the leading United States Supreme Court case, Williams v. North Carolina, 325 U.S. 226, 89 L.Ed. 1577, 65 S.Ct. 1092 (1945), the jurisdiction of a court to grant a divorce is based on domicile. That means that the "default setting" for people who are domiciled in the United States is that any divorce obtained by the parties in a place that is the domicile of neither party is a nullity. Go back and re-read the preceding sentence just to let it sink in. Invalidity should be presumed to be the result, regardless of where the parties were married, or in which foreign country they plan to get a divorce, or where they plan to remarry.

As one court held, "We cannot sanction a procedure by which citizens of this State with sufficient funds to finance a trip to the Caribbean can avoid our legislature's judgment on the question of divorce. To hold otherwise would be to flout our law; it would permit domiciliaries of North Carolina to submit their marital rights and obligations to the contrary policies and judgments of a foreign nation with which they have no connection." Mayer v. Victor, 66 N.C. App. 522, 311 S.E.2d 659 (1984).

A majority of states in the U.S. have never had their state's highest court determine whether consent will substitute for domicile in order to confer jurisdiction on a court of a foreign country under circumstances when neither party is domiciled in the place where the divorce is obtained. Only a handful of states have answered the question favorably. See Annot., Domestic Recognition of Divorce Decree Obtained in Foreign Country and Attacked for Lack of Domicil or Jurisdiction of the Parties, 13 A.L.R.3d 1419 3(d), at 1433 (1967). It is more likely than not that a state which is newly addressing the question will adopt the reasoning of the majority of sister states that such divorces are void.

In the vast majority of cases, of course, it will never matter; there may never be any party or government agency to question the validity of the divorce. Indeed, a party who has participated in a divorce (for example, by consent) will generally not be heard (in legal terms, "estopped") to complain that the divorce is invalid. But if the question does arise and is tested in a court, the results could be embarrassing, expensive and devastating. Accordingly, it is essential that the validity in the place of the parties' domicile of any foreign divorce be ascertained prior to embarking on any course of action which depends on a foreign divorce.

Dominican divorce decrees are very official-looking, and most states will permit a party who presents a certified copy of his or her Dominican divorce decree to obtain a marriage license to remarry. However, the determination of a license clerk regarding the validity of a divorce is not dispositive, and it may later turn out that a court or other government agency will determine the divorce to be invalid. The new marriage will then be bigamous and void. To the extent that important family rights depend on the validity of marriage (for example, the right to be supported, to receive Social Security benefits based on marriage, and to inherit), the consequences of a failed attempt at divorce and remarriage are potentially catastrophic. And, bigamy is a crime.

A surprising number of would-be Dominican-divorce parties have pressing income-tax or immigration issues. It should be expected that a Dominican divorce will be extremely carefully scrutinized by tax and immigration officials. Other government agencies (like the Social Security Administration) will do likewise. They are not bound by the Dominican court's assertion of the validity of its own acts. In particular, they will look to the law of the jurisdiction where the parties are domiciled and attempt to apply that law to determine the validity of a foreign divorce. If there is no settled law in that jurisdiction, the I.R.S. and I.N.S. have historically attempted to decide how the state courts of that state would recognize (if at all) a Dominican divorce, and they are entirely capable of "making up" the law of a state that has not yet decided the issue! The I.N.S., perhaps to an even greater degree than any other government agency, will question every detail of a Dominican divorce, including such procedural matters as whether and when the decree was "pronounced" after being ordered by the judge. Parties who are motivated by tax or immigration issues should be particularly careful about consulting with counsel (never rely on a mail-order or "paralegal" "service") regarding the treatment that can be expected to be accorded to their divorce.

There are a number of document-processing services and Dominican attorneys who will attempt to obtain your business by claiming the validity of Dominican divorces in every foreign jurisdiction — occasionally even with respect to pure "mail order" divorces where neither party appears. (And, as long as the inquiry is limited to validity in the Dominican Republic alone, such an assertion is usually correct.) In addition to perpetrating a fraud on the consumer, such services are also engaged in the unauthorized practice of law when they render such advice - a crime. You must be advised by a lawyer regarding the enforceability of a Dominican divorce in the state or country of your domicile. Such advice does you no good after you have already planned your remarriage, immigration status or tax status based on a "mail order" or otherwise invalid divorce, and you cannot obtain such advice from a "paralegal" service or a Dominican attorney. If you are expecting to achieve particular tax or immigration status based on a Dominican divorce, consult your tax or immigration lawyer first.

Finally, it is important that the attorney who handles your divorce be prepared to stand behind it. Some Dominican lawyers have been known to take the parties' money but, in order to make the case a bit more profitable, omit a small step like enrolling the judgment. Inattention to such a detail will render the divorce void. Know with whom you are dealing.

A divorce in the Dominican Republic should be an absolute last resort. If there is any reasonable alternative in the place where the parties are domiciled, it should always be the forum of first choice.

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