Over time the business community in Texas, especially in our major cities, has taken on an increasingly international character. It’s really no surprise that businessmen and women from all over the world have found economic opportunity in Texas, and have started and grown numerous businesses here.
However, occasionally Texas law comes into direct conflict with the nature of the law in an individual’s country of origin—sometimes in surprising ways—and the result can be chaos in that person’s business and personal life.
A new Texas law went into effect recently that provides for the Texas Supreme Court to create rules which restrict recognition of a foreign judgment that “violates due process or fails to acknowledge the constitutional rights of all parties involved.” In many countries divorce law follows due process and the rights of all parties are respected. In these cases foreign divorces are respected in the interests of international “comity” (courtesy and mutual consideration).
However, the new law can affect recognition of foreign divorce decrees in countries where women lack significant legal rights, and a husband may divorce a wife simply by saying, “I divorce you” three times! Such a divorce may not be recognized by Texas courts. Similarly foreign pre-nuptial agreements that do not appear to provide an equitable division of property between men and women may also be considered invalid in Texas.
How may this new law be ultimately applied in Texas courtrooms? One highly complex current case involves a foreigner who came to Texas and started several businesses, becoming quite successful. After a number of years, his ex-wife, whom he had both married and divorced in his country of origin and had not even seen since the divorce, suddenly appeared in Houston. Insisting that their foreign divorce was invalid in Texas, she demanded half of everything her former husband had earned and all the property he had acquired in Texas. (This particular case was further complicated by the difficulty of acquiring the essential foreign documents in a land said to be ripe with fraud, and a court system that reportedly does not follow our traditional notions of fair play and substantial justice.) The case is still painfully wending its way through Texas courts.
The issue of whose divorce is valid where has trapped others as well. In a different case, a man was legally divorced in Texas but is still trying to obtain a valid divorce in his country of origin. In Texas he is legally a divorced man but he is still a married man in his home country. Another wrinkle that often complicates matters for immigrants trying to complete a Texas divorce is the fact that, according to Texas law, a Texas court is hard-pressed to award title on foreign property to either spouse in a divorce suit when there are complications involved in getting a foreign land to recognize a Texas court’s order. A Texas court is permitted to evaluate the worth of such property but cannot award it without encountering serious complications. Foreign property should be legally divided in the country where it is located.
In other situations, a woman may be pressured into signing a post-marital “partition and exchange” document, which divides up community property. The property that is divided up between the two spouses becomes their separate property and is no longer part of the community property “basket,” as is the income from that property.
But women who come to the U.S. from foreign countries sometimes are used to the fact that in their home countries they have few rights. They may believe they are required to sign such a document without seeking outside advice or legal representation and without a full understanding of what they are being asked to do. They may not even have enough command of the English language to fully understand the document. The end result may be that they have given up valuable property without a fight. In such a case, the partition and exchange document may not be enforceable, if a court determines that the agreement was the result of fraud or duress, or was unconscionable.
It is a good idea for anyone from a foreign country who is living and working in Texas and seeking extrication from a marriage, to obtain a valid Texas divorce as a first priority. A Texas divorce will also be recognized throughout the U.S. Then, depending on personal circumstances, he or she can decide whether it would also be prudent to seek a divorce in his or her country of origin. If an immigrant has already obtained a foreign divorce, he or she should consult a Texas attorney who is experienced in dealing with these kinds of complexities to determine whether a Texas divorce is also necessary or would be a wise precaution.
This article was written by Douglas R. York, an attorney based in Houston with 17 years’ experience in marriage dissolution, including multi-jurisdictional divorces involving highly complex legal issues.