As a family lawyer in Silicon Valley, I often work with clients with international issues: enforcing judgments in Europe, dividing property abroad or obtaining custody orders when the parents live on different continents. A crucial step in any international case is proper service.
“Service” means to give notice of a legal proceeding to the other party. There are many laws that govern international service. One of the most important is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Convention” or “Hague Service Convention”). The Convention applies in all “civil or commercial” matters, including family law cases, whenever “there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Convention, Article 1.)
Many family lawyers shudder at the thought of the Hague Service Convention. It conjures up memories of strange words like “apostille.” But, as the United States Supreme Court explains, the purpose of the Convention is to provide a “simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 US 694, 698.)
The Convention requires all signatory nations (68 in total) to establish a central authority to process requests for service. When a request is received, the central authority must serve the document according to the country’s internal laws or as directed by the requesting party in a manner that would be compatible with the country’s laws. Unless a nation objects, the Convention does not preclude other methods of service, but the central authority provides greater assurance that service would be proper. Defective service may render a judgment or order void.
In family law cases, parties file and serve many documents that require swift attention from the court, including requests for temporary orders on support, property or custody while the case is pending. In international cases, a family law attorney must consider whether the Convention or the destination nation’s laws apply to service of a document.
One issue is whether the Convention applies to any service abroad, or only to service of process. “Service of process” is the formal method of giving notice to the other party of a pending legal proceeding. Service of process is usually accomplished by serving a copy of a “summons” on the other party.
The Convention applies whenever “there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Convention, Article 1). This express language suggests that the Convention applies to service of any judicial or extrajudicial document to be served abroad, not just documents for effecting formal service of process. On the other hand, in Volkswagenwerk, supra, without explicitly deciding the issue, the United States Supreme Court interprets the word “service” in Article 1 of the convention to mean “service of process.” Where it would be impracticable to serve a document through a country’s central authority, a family lawyer should consider whether the chosen method of service would expose the party to challenges to a petition, request, judgment or order on the grounds of improper service, and if necessary, seek advice from an attorney licensed in the destination nation.
Another common service issue in international divorce cases occurs when the other spouse or parent’s whereabouts in the foreign country are unknown, or he or she does not have a discernable address, as can be the case in rural areas. The Convention expressly does not apply, and the destination nation’s central authority cannot process a request, where the address of the respondent is unknown. (Convention, Article 1.) This can be problematic if the destination nation has objected to any form of service by foreign parties other than service through its central authority. Mexico is one such nation. Service in such a case would seem to be both impossible, but required, through the central authority.
Fortunately, in cases where the foreign party’s address is unknown, the filing party can avoid the Convention entirely by seeking an order for service by publication. “Service by publication” is a method of last resort for serving respondents whose locations cannot be found after a diligent inquiry. It involves publishing notice of the lawsuit in a newspaper of general circulation for a number of successive weeks. Service by publication does not run afoul of the Convention because service does not require the transmission of “a judicial or extrajudicial document for service abroad.” (Convention, Article, 1.) Publication is done entirely within the borders of the forum state. A spouse or parent, however, may need to demonstrate to the court that publication was the only available means of effecting service.
International divorce cases can be challenging, but by guiding judges through the intricacies of international treaties, state and local law, family law attorneys can accomplish their clients’ objectives. Because of the complexities, where appropriate, creative settlement strategies can often be used to reduce the cost of international litigation.
Brandon Rose is a family law attorney with McManis Faulkner, the number one family law firm in Northern California for five years in a row. He draws upon a background in civil and business litigation to help his family law clients untangle complex property dissolution issues, and resolve contested child custody and support issues. For more information, please visit mcmanislaw.com.