Due to the transnational nature of our practice, many of the divorce cases we handle involve complex property distribution issues that are located in a country other than the country in which the spouses are domiciled. On the one hand, there are cases in which the spouses are domiciled in a foreign country, but possess marital property in the state of Florida. On the contrary, there are also cases in which the spouses are domiciled in Florida, but possess marital property in a foreign country. This transnational aspect presents certain complexities that, if not addressed with an adequate strategy, can result in loss for the spouse who is not well advised. This article deals in a general and introductory manner Florida law with respect to divorce and / or distribution of property decreed by a foreign court.
Florida courts can recognize a divorce resolution enacted by a foreign court under the principle of “courtesy.” The principle of courtesy is discretionary and not mandatory. This means that Florida courts are granted by the legislator discretion to recognize such decrees in certain circumstances, but are not required to do so. However, Florida courts should not decline courtesy to a foreign court decree, unless it is necessary for the protection of Florida citizens.
The principle of courtesy has been the subject of extensive development by Florida courts. For this reason, each case must be carefully analyzed to determine the possible impact that the principle of courtesy would have on it. Generally speaking, the following are required for a Florida court to recognize a foreign divorce resolution under the principle of courtesy:
- Both parties must have received notice of the divorce process and an opportunity to intercede and be heard;
- The foreign court that decreed the divorce is competent for this purpose; And
- The foreign resolution does not contravene the public interest of Florida.
Thus, the recognition of a foreign divorce resolution by a court in Florida depends largely on the relevant legislation in the foreign country and the procedure of the foreign court in the specific case. In Colombia, for example, the civil procedure law requires that the defendant spouse be summoned to appear before the court where the claim lies to be personally notified of the divorce claim. If the defendant does not appear within the time prescribed by law, the plaintiff spouse must serve the claim through notice. In this way, divorces decreed by a Colombian court in compliance with the above, meet the first requirement for recognition in the Florida courts. However, a procedural error in this regard can be fatal when seeking recognition of the divorce decree in a Florida court.
Now in Davis v. Dieujuste, the Florida Supreme Court clarified that a former spouse cannot submit to a Florida court for consideration the rights of former spouses over property acquired during the marriage in Florida territory, when such rights were litigated or should have been litigated in the context of the divorce proceedings abroad. For this reason, not presenting to the foreign court the rights of the spouses (or former spouses) on the property acquired during the marriage in Florida, can be a fatal error for the spouse who does not appear as owner in the title of some fine in florida. It is curious, however, that, in Venezuela, for example, the process of separation of assets (contentious or by mutual agreement) is carried out after the marital dissolution. So even though there is a divorce decree by a Venezuelan court, it is conceivable that the rights of former spouses to Florida property could be brought before a court in Florida. However, if there is a decree of separation of assets by a Venezuelan court, which is silent regarding the assets in Florida, the spouse who does not appear on the title of said assets may be completely stripped of them.
If you are facing a possible divorce process, we strongly suggest that you contact an attorney who knows the transnational aspects of the distribution of marital property, to design a strategy that encompasses aspects of Florida law and the foreign countries involved. Attorney Franco is licensed to practice law in Florida, New York, and Colombia. In addition, we have strategic allies in foreign countries, such as Colombia and Venezuela. We make all of the above available to our clients to design and implement the ideal strategy for their specific case. From our office in Miami we can implement the entire transnational strategy, including the establishment of legal processes in foreign countries through our allies in their respective countries.
Fernando Franco, Esq.