Choice of Law

There are many different laws which are relevant to family matters. When parties move to different states and countries, there are laws and procedures in effect to obtain, maintain, and enforce family laws and issues arising from family relationships. This includes divorces, separations, support, custody, paternity, and property rights. There are several different choice of law doctrines which may apply depending upon the specific facts.

New Jersey will have jurisdiction over a divorce if one of the parties has resided in New Jersey for one year. When the divorce is filed in New Jersey, if during the marriage for example, marital funds were expended and used in another country to buy land, a determination may have to be made by the court as to whether foreign law or New Jersey law applies for the purpose of dividing that asset. When parties to a marriage purchase property or gain assets in another country or state during the marriage, an issue can arise as to what law applies to the disposition of the property. Similarly if parties move to different states and countries, choice of law issues arise about custody and support.

Uniform Interstate Family Support Act (UIFSA)

A common issue is interstate enforcement of Child Support and Spousal Support. You’re owed support, and your ex-spouse or parent of your child moves to another state. This is so frustrating. Once a support order is entered in a state, that order controls the child support obligation, as long as one party remains in the state that issued the order.

The state that enters an order retains Continuing Exclusive Jurisdiction (CEJ) so long as one of the parties to the case continues to reside in the issuing state. No other state has the right to modify an order of another state that has CEJ. The point of this is to avoid conflicting orders from different states.

The UIFSA laws, applicable throughout the United States, are designed for quick and effective collection. Your state probation office can directly garnish the wages of the obligor in another state. This is amazing, because normally one state can’t cross the lines of another state to take action. Also, the state where the obligor lives can also work to help with collection. If your state can’t find the obligor to directly collect from, your state will send its order to the obligor’s residence state and that office will help you to collect locally. The system isn’t perfect, but it is designed to be very effective.

Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) – Custody

If there is an issue concerning custody of children, the child’s home state is the exclusive jurisdiction for a custody determination. The Uniform Child Custody Jurisdiction and Enforcement Act governs the determination of subject matter jurisdiction in NJ regarding interstate as well as international custody disputes. If a child is abducted to another country it may come under the International Child Abduction Remedies Act. The Hague Convention Article 3 can order that a child wrongfully removed from where he/she was habitually resident be returned.

In an initial request for custody, a State Court has jurisdiction to make an initial and/or UIFSA child custody determination if:

This State is the home state of the child on the date of commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

Physical presence of a party or child is not necessary or adequate to make a child custody determination. As an example: Mom, Dad, and little Joe live in NJ. Mom and Dad aren’t married. Mom and little Joe stay in NJ. Dad moves to Texas. Joe stays in school in NJ. He goes to Dad in June for the summer break and Dad brings an application in Texas for custody. This won’t work. NJ has the proper jurisdiction to determine custody, not Texas. Instead, Joe is going home to NJ for the custody determination.


Another principle is the general rule that the court which first acquires jurisdiction has precedence. A New Jersey state court will stay or dismiss a civil action in defense to an already pending substantially similar lawsuit in another state unless compelling reasons dictate that it retain jurisdiction. Three facts must be determined. The defendant must establish:

(1)        There is an earlier action filed in another state.

(2)        Both cases involve the same parties, the same claims, and the same legal issues.

(3)        The plaintiff will have the opportunity for adequate relief in the prior jurisdiction.

In a divorce matter, the New Jersey court would inquire if there were another action in another state or country, which action was resolved first, and were there the same claims and legal issues decided.

Collateral Estoppel

Collateral Estoppel provides that a party may not argue an issue of fact or law that was “actually litigated and determined by a valid and final judgment in a prior proceeding between the parties.” If a court in the foreign country entered a judgment, the issue may not be re-litigated. However, because it is an equitable doctrine, the court may choose not to apply it in the interest of fairness.

This is applicable if there was an error made, if certain elements were unforeseen, or the full claim was not addressed.

In one case a son claimed that his father’s second wife’s Mexican divorce was not valid. The second wife was to receive the proceeds of a wrongful death claim. The father’s son attempted to get the money by claiming that his father’s second marriage was not valid. The court deemed that the prior Mexican divorce and current marriage was valid. The principle of collateral estoppel applied.


Another legal principle is known as comity. This is the recognition in which one nation allows within its territory the judicial acts of another nation, having regard to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. The recognition in New Jersey of a judgment of a foreign court under the principle of comity is generally subject to two conditions (1) that the foreign court had jurisdiction of the subject matter (2) that the foreign judgment will not offend the public policy of our own state.

There was a case in which New Jersey refused to grant comity to a Cuban custody decree which had not been personally served on the defendant and did not sufficiently apprise the defendant that custody would be an issue. Our rules require that service be properly made on the parties to an action. In another case, comity was not granted in a foreign custody ruling because the welfare of the child was not considered, nor did the child have a guardian ad litem to protect his interest. New Jersey gives priority to the best interest of the child. This is public policy of New Jersey.

Governmental Interest

The courts also do a governmental interest analysis in family cases. For example, if the parties spent most of their married life in New Jersey, were citizens of the United States, worked in New Jersey, and raised the children here, the court is likely to apply New Jersey law to resolve all issues. Thus the issue of distributing property located in a foreign country or state acquired during the marriage would likely be determined according to New Jersey law.

An example is parties, who file for divorce in New Jersey, worked and have children here, but have business interests in Asia and land in Asia. The businesses and land were acquired by the parties during their marriage. They may be titled in one spouses name in the foreign country. These assets according to New Jersey law would be subject to equitable distribution. The court could offset one spouse’s equitable interest against income or property in New Jersey. One spouse could be awarded a greater share of assets that are in New Jersey to equalize the division of assets when that spouse may not have access to the foreign property. The concept of equitable distribution is applicable in New Jersey divorce law. The property may exist in a country which does not have the same law, but since it is a New Jersey divorce, that law will apply. Some countries may not have equitable distribution. Property may solely be kept by the person who has title, no matter who contributed to it.

Helfand and Associates are experienced matrimonial attorneys, and have handled issues concerning foreign assets, international custody disputes, and support obligations of parties throughout the United States.  Tanya N. Helfand, Esq., is a certified matrimonial attorney practicing for 23 years.  Herman Osofsky, Esq, of Counsel, is both certified and a member of the American Academy of Matrimonial Lawyers and has been practicing for 50 years.  We have a free ½ hr. consultation.  The firm welcomes your questions and inquiries at [email protected] or you can contact us at 973-428-0800.