Complicated Chinese-American Divorce
In today’s wave of going abroad, a large number of Chinese citizens out of the national, foreign-related cases are increasing day by day, the most common foreign-related marriage, due to cultural, language and other differences, the problem is often also more. This case involves a Chinese citizen’s U.S. divorce, the authentication of foreign-related documents, and the recognition of divorce decree in China, which is informative and representative, and is briefly summarized by Mr. Chen as follows for readers’ understanding.
The client in this case, Ms. Li, a Chinese national, registered her marriage with her American boyfriend in Shanghai three years ago and went to California to live together after the marriage, but after a year Ms. Li returned to Shanghai alone. Just after she returned to Shanghai, she received divorce papers from the man’s lawyer.
Ms. Li was introduced by a friend and found Ms. Chen Jie of Shanghai Zhong Hua Firm in early 2015. After Ms. Chen communicated with Ms. Li in detail about her and her husband’s situation, she learned that the woman was indeed very vulnerable: the man refused to come to China for divorce, and the cost of divorce for Ms. Li to go to the United States became very high; the man had hired a lawyer very strong, and when the divorce agreement was given for the first time, Ms. Li said she did not have a lawyer and refused to sign; later, the woman asked the man to complete the divorce procedures again, and the man ignored it. Divorce is thus put on hold.
After analyzing the possibility of divorce in China and the United States, the problems and solutions, Chen Jie and Ms. Li determined the basic plan: divorce in the United States, obtain a divorce decree from the U.S. court and then apply for recognition in the Chinese court.
U.S. divorce must go through the court process, California divorce takes more than 6 months. During this time, if Ms. Li with a tourist visa to live in California, can not work, the daily expenses are too large; if you stay in Shanghai, negotiation or court appearance and then go to California, the time is uncertain, each trip travel expenses are also very expensive.
In order to help Ms. Li end her marriage as soon as possible and at a manageable cost, Ms. Chen discussed with her U.S. partner and recommended that Ms. Li retain Joseph Tsang, a California-based attorney, as her advisor to help her navigate the court divorce file and supervise the completion of the divorce process by the male partner. Ms. Li’s divorce expenses were minimized.
The man learned that Ms. Li also has a lawyer, at first very resistant, requesting that the court divorce procedures be transferred to the Zang lawyers to complete, their own lawyers are no longer responsible. Later, after the lawyers negotiated, the divorce process was finally restarted by the man’s lawyer, but there were bumps and bruises in the middle, problems with the divorce agreement, mistakes in the document submission process, etc., and it took about a year to receive the judgment from the California court. After Ms. Li received the divorce decree from Ms. Zang, she was overjoyed and very grateful.
Recognition of U.S. Court Decisions in China
Chen Jie and Peng Mei Qian of Zhong Hua filed a petition for recognition of Divorce Decree No. FAM0127XXX of the Superior Court of San Mateo, California.
After we accepted the commission, we immediately arranged to do the certification of the judgment in the U.S. The certification was completed and translated in China. application was filed with the Shanghai No. 1 Intermediate People’s Court in early June 2016. With the efforts of Mr. Peng Mei Qian, the Shanghai No. 1 Intermediate Court immediately issued the civil ruling No. (2016) Shanghai 01xiewai Recognition No. 9 in late July, recognizing the legal effect of the divorce judgment No. FAM0127XXX issued by the Superior Court of San Mateo, California, USA.
Attorney Chen Jie would like to popularize some legal knowledge in foreign-related divorce.
U.S. Divorce Procedures and Timing
In a divorce by consent in the United States, there is a legally mandated waiting period after the parties file for divorce in court. The length of the waiting period varies from state to state, with California having a waiting period of six months. At a minimum, the divorce must not be finalized until after the waiting period and the court issues a divorce decree, and the parties are free to remarry. For more information, see the article “The Procedural Framework for Divorce by Consent in the United States”. The California waiting period is 6 months, which is undoubtedly too long and costly for foreigners to wait for a judgment in California.
Can a foreign divorce decree be used directly back in China?
Foreign documents sent to the territory of China for use, with exceptions, must be consularly certified.
Consular certification is an international practice that has been gradually developed in the diplomatic and consular practices of countries around the world in order to facilitate the mutual exchange of documents. At present, China has not signed bilateral treaties or agreements with other countries to exempt consular authentication, but there is a clause of “exemption from authentication” in bilateral judicial assistance treaties and agreements between China and foreign countries. Other than that, consular certification is generally required for all foreign civil and commercial documents sent to China for use.
Therefore, to use the divorce decree in the United States, you must first apply for a certified copy from the court, and then have it certified by the local county, state and Chinese embassy or consulate in the United States before you can take it back to China.
Recognition of foreign divorce decrees in Chinese courts
According to Article 27 of China’s Law on the Application of Law Relating to Foreign Civil Relations: “The law of the forum shall apply to divorce proceedings.” In other words, the U.S. divorce judgment is also legally valid in China and binding on both parties. However, according to Article 1 of the Provisions of the Supreme People’s Court on the Procedures for Chinese Citizens to Apply for Recognition of Divorce Decisions of Foreign Courts, “For divorce decisions made by foreign courts with which China has not entered into judicial assistance agreements, parties of Chinese nationality may apply to the People’s Court for recognition of the divorce decisions of such foreign courts in accordance with these provisions. For the divorce judgment made by a foreign court with which China has a judicial assistance agreement, apply for recognition in accordance with the provisions of the agreement.” Since the U.S. has not yet signed a civil judicial assistance agreement with China, it is still necessary to apply for recognition of this procedure for its judgments first. Note that the recognition of the divorce judgment is only the recognition of the judgment of dissolution of status, i.e., the end of the marital relationship, and does not include the recognition of the judgment of division of property, burden of living expenses, or child support of the couple. Once a foreign court judgment is recognized by our courts, the relationship of rights and obligations of the parties as determined in the original judgment is determined and acquires the same effect as a domestic court judgment.
(Pseudonyms are used in the text to protect the privacy of the individuals involved)
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