A French-New York Family Case by Helene CARVALLO, Esq. and Anne-Carole PLACAIS, Attorney at the Paris Bar

In our globalized society, it has now become commonplace that a French family moves to the US or that a French gets married to a US citizen (or the other way around). When a legal issue eventually arises, either a separation, a divorce, or the need to organize the life of their common children, they ask us, family and matrimonial attorneys, to help them find out what judge and what law will apply to their case. Below is an overview of the international rules that apply to such matters in France and in New York.

Step 1 : Preliminary Questions on International Law : Jurisdiction and Applicable Law : When a case with a cross-border aspect is brought before a court, be it French or American, the Judge will ask him or herself two preliminary questions :

1/ Do I have jurisdiction to rule on this matter? New York follows US laws, whereas France follows European rules, the main criteria being the residence of the parties, or additionally their nationality.

2/ What law should apply? Whereas the New York judge, once he has found he had jurisdiction over a subject-matter, will apply his own law, i.e. New York law, the French judge may consider he shall apply either his own law or a foreign law, unless (1) he is unable to know the content of the foreign law, which in the case of US law, is highly hypothetical ; (2) the case is at the stage of predivorce conciliation proceedings (mesures provisoires prises à la suite de l’audience de conciliation). In those events, he may apply French law.

Step 2 : Lis Alibi Pendens/Simultaneous Proceedings : Whereas there is only one judge in France ruling on both divorces and parental responsibility cases, called the Juge aux Affaires Familiales, dependent on the Tribunal de Grande Instance, New York distinguishes matrimonial issues (divorce), which go before the Supreme Court, from family issues (custody, visitation, alimony), which go before the Family Court, unless they are ancillary to the divorce. When both French and New York courts are seized, the second court that is seized should suspend any decision until the first court decides whether it has jurisdiction or not.

Step 3 : Divorce : separation, matrimonial regime, maintenance and division of assets : In France, spouses may either divorce by mutual agreement (consentement mutuel), meaning that all issues are resolved including finances and children; or one of them may start a contested divorce, meaning that at least one issue is not resolved. In that case, the spouse will file a “requête en divorce” before the judge, who will summon the spouses to attend a predivorce hearing, called “audience de conciliation”. There, the judge will listen to each spouse, first alone and then together with their attorneys, and rule on temporary and provisional measures regarding spousal support, child support, custody and visitation. Temporary spousal support (devoir de secours) will be granted, on a discretionary basis, in order to enable the poorer parent to maintain the level of life he/she used to have during the marriage. All temporary measures will remain applicable until the divorce is granted.

At a later stage, the French Juge aux Affaires Familiales will rule over the divorce itself. There are 3 grounds for contested divorces, including one fault and two non-fault-grounds. The judge will rule on the liquidation of assets, following the law that the spouses have chosen in their marriage deed (contrat de marriage) or, in the absence of it, the law of either the State where the spouses first settled after the marriage, or the State of their common nationality, or the State with which their marriage has the closest links. In France, the “communauty property” regime is the presumption, unless the spouses choose a “separation of assets” or any other form of regime. Finally, the judge will grant a distributive award, called prestation compensatoire, to the spouse whose standard of living is negatively impacted by the divorce.

In New York, a matrimonial action is commenced by the filing of either a summons with notice or a summons and verified complaint, along with the automatic orders preventing either of the spouses to dispose in any way of any property or assets, individually or jointly held, to incur unreasonable debts or to jeopardize the spouse’s or the children’s rights to health insurance or any other insurance, including life insurance.

New York law provides for 7 grounds for divorce and 5 for a separation “from bed and board” that must have occurred within the past five years.

Before the divorce is granted, either the Family Court or the Supreme Court may order Temporary Spousal Support following mandatory rules included in the Guideline Maintenance. The Supreme Court ruling on the divorce may also rule on Post-Divorce Spousal Maintenance, which amount will depend on the income of the spouses and which duration will mainly depend on the length of the marriage. The Court may also order a Distributive Award, depending on the spouses marital or separate property. Following the rules of Equitable Distribution and unless there is a valid Prenuptial or Postnuptial Agreement stating otherwise, separate property shall remain such and marital property shall be divided equitably following 14 factors listed under DRL §236 (B) (5) (d).

A financial disclosure by both parties of their respective financial situations is compulsory, through the provision of a Sworn Statement of Net Worth as well as financial documents such as bills, pay stubs, receipts, W-2’s and other papers which back-up the information put on the financial disclosure affidavits.

Step 4 : Children : Legal & Physical Custody, Visitation and International Kidnapping : When the judge is asked to organize the life of the children in the course or after a divorce, he will consider the following issues:

Who is to take the main decisions regarding the child’s life, i.e. education, religion and health? This is referred to as “legal custody” in US law and “autorité parentale” in French law. The court must determine what is in “the best interests of the child”, leaving broad discretion to the judge. In France, legal custody is presumed to be joint, unless one of the parents is unfit. In contrast, New York remains one of few states without a statute for joint custody: sole legal custody is the principle.
Who the child will be living with? This is known as the issue of “physical custody” in the US or “résidence” in France. Although physical custody is most of the time given to the mother (71% of the cases in France in 2012 and 82.2% in the US in 2011), there is a great move in both countries towards shared physical custody, meaning that children spend regular time –but not necessarily equally—with both of their parents. However, shared physical custody needs prerequisites such as parents living near-by and close to the school, having the capacity to communicate, and so forth.
What kind of visitation and parenting time will be provided for the non-custodial parent? This is the concept of “visitation” or “droit de visite et d’hébergement”. In both countries, visitation will commonly follow a schedule of alternate weekends and half of the vacations. New York will easily add one dinner a week to this schedule. In the event of Domestic Violence however, the abuser parent will be considered a danger to the child and visitation may be suspended or supervised.
How much Child Support (“contribution à l’entretien et à l’éducation de l’enfant”) should be granted? In France, no mandatory guidelines are set and judges will rule, in the exercise of discretion, depending on the needs and level of life of the child, as well as the income and expenses of both parents. It can be modified if there is evidence of a substantial change in circumstances. There is no age limitation, it remains due until the child is capable of having stable earnings. In New York in contrast, Child Support follows mandatory rules included in the CSSA. It is due until the child reaches 21 years of age, unless the parents agree otherwise.
All decisions related to the child are presumed to follow his/her best interest. They can be modified anytime if his/her best interest commands it.

Finally, both countries have ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which prevents any parent to wrongfully move with a child out of the State where the child has been residing, without the consent of the other parent or a court order. The convention may not allow the judge to actually rule on custody but rather, to organize a prompt return of the abducted child to the country of his/her residence, where the local judge may be ruling over this issue.

Step 5 : Recognition and Enforcement of Foreign Judgment – Mirror-orders : Due to their policy for sister-state judgments, which enforceability in another US state is facilitated, the United States easily enforce foreign judgments, even in the absence of any bilateral or multilateral treaties, thanks to the doctrine of Comity of Nations. There are some exceptions to that doctrine, specifically regarding child custody issues.

France, though it may easily recognize and enforce a judgment rendered in another European Member-State, will require that a special proceedings, called “procédure d’exequatur” take place to enforce a US divorce judgment.

Family and Matrimonial cases have become more and more sophisticated over the years due to the multiplication of international families. But it is absolutely necessary for a proper defense of clients’ rights to know at least two systems of law as well as the international rules of Family Law.