An early pitch for the Hague Maintenance Convention

In private international family law, a party (an obligee, that is) may face a legal maze when enforcing a foreign spousal support/maintenance order against a former spouse (an obligor). The U.S. state courts offer an illustrative example.

But before heading Stateside, I will mention some private international law instruments on this topic.

The Hague Conference on Private International Law has completed the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Maintenance. However, with only two signatories (the U.S. and Burkina Faso) and no ratification, this convention has not entered into force.

Nor do previous instruments offer much help. The predecessor 1973 Hague Conventions on the topic garnered relatively meager support. Some reciprocal agreements exist between the U.S. or U.S. states and other countries, but careful analysis reveals little uniformity among these agreements.

Thus, private international law agreements do not—yet—provide much clear help on this subject.

So in the U.S., domestic courts play the leading role, and the first issue in the domestic courts will be recognition. For those readers yearning for the “good old” private international law days, we now turn to the familiar subjects of comity and jurisdiction-specific law.

Based on comity, U.S. courts may recognize foreign maintenance orders. Comity—very generally—is a largely judicial doctrine whereby foreign court orders were obtained through proceedings in a foreign state that do not offend a strong public policy of the recognizing state. Courts have relatively broad discretion considering comity. Though comity permits recognition in most cases, some uncertainty remains on this path to recognition.

Statutory provisions provide another path to recognition. For example, North Carolina has enacted the North Carolina Foreign Money Judgment Recognition Act in concert with the , which affords a plaintiff a statutory recognition procedure.

A more common statutory framework for recognition is the Uniform Interstate Family Support Act. All states have adopted a version of UIFSA, and foreign court orders from recognized States—“foreign reciprocating countries”—enjoy streamlined recognition under UIFSA.

The Secretary of State of the U.S. can denote foreign reciprocating countries at the national level. Alternatively, some state Attorneys General will acknowledge other foreign reciprocating countries at the state level. So, if a country is recognized as such, then recognition is quite straightforward. Otherwise, an obligee must rely on comity for recognition.

After determining that the order is recognizable, the U.S. domestic court must then ascertain whether personal jurisdiction existed over the defendant in the foreign court.

For some courts, this determination begins by examining jurisdiction under the laws of the foreign country. This will not however suffice—the foreign court must also have had personal jurisdiction under U.S. standards by showing statutory and constitutional authority.

Personal jurisdiction is relatively broad under UIFSA’s “long-arm” jurisdictional provisions at section 201. This statutory authority is necessary—but not sufficient—to find personal jurisdiction.

Rather, the obligee must also show that the previous court had constitutional authority to exercise personal jurisdiction.

In the vaguest terms, the U.S. Constitution requires a party to have purposeful minimum contacts in the forum whereby the exercise of personal jurisdiction comports with the notions of fair play and substantial justice. For a more thorough definition of this concept, please spend three weeks shivering through a 1L Civil Procedure course.

Once the obligee establishes that jurisdiction existed in the foreign court, then—assuming that the domestic court has jurisdiction over the obligor—, the court will most likely enforce the order. Additionally, the obligee can in theory obtain legal advice and assistance on these matters at no cost.

Of course in reality, the procedural and substantive legal subtleties in each jurisdiction will require competent and experienced legal counsel for these types of actions. Further—as you can probably tell—, this overgeneralization of the enforcement procedure obscures the potential technical difficulties (e.g., conflicting orders, modifications, two-state proceedings) that parties and attorneys face.

For that reason, the recent Hague Convention on this subject offers a welcome tool that could streamline this area of international family law.

Considering the substantial sums that obligees can recover, the obligor’s moral duty to support children, and the overall best interests of children, countries should sign and ratify this Convention. Moreover, with increasing international mobility, the need for coherent legal mechanisms will only increase. Currently though, these pressing needs face a patchwork of confusing paths to recognition and enforcement.

Rather than leaving parties and their counsel to muddle through this minefield, States should subscribe to a uniform and autonomous framework for enforcing matrimonial judgments. Alas however, the initial lack of international support on the recent Hague Convention may for some time spell continued confusion on this complex and pressing legal problem.