Service of Process in Foreign Country | Mail or Convention?
A question was posed today by a colleague: whether I'd recommend mailing, by certified mail return receipt requested, a summons and complaint for divorce to a husband in China who, it is thought, will accept service and sign the judgment of divorce. I suggested sending by mail and asking Husband to sign both the Acknowledgment of Service on the back of the Summons and the Consent Judgment at the US Embassy by apostille signature. [Note: If Husband is Chinese and not an American citizen, he won't be able to obtain an apostille signature at the United States Embassy]. Obtaining certification (notary services) at the U.S. Embassy is described on the State Department's website. The US Embassy only notarizes documents written in English. There are other issues regarding access to services at the Embassy. See the State Department's website.
Of course I should not have simply assumed that this was a case of "status divorce"--(a divorce for the purpose of dissolving the marriage only, without a division of assets that may be located in China). If Wife just wants "divorced" status" in the U.S., then a simple Judgment of Divorce would work if Husband accepted service of process and also signed the Judgment. Anyone may willingly submit to personal jurisdiction in any state for the purposes of having a Judgment entered. Division of property held jointly titled may be achieved, however, only if located in the United States without additional enforcement proceedings in another country. A provision in the Judgment that permits recording the Judgment in order to change title of real estate, motor vehicles, etc. is an essential element of the Judgment to ensure changes in title to property located in Michigan. But then we all know that enforcing a Judgment dividing real estate or other assets located in another State in the US can be expensive. Of course, the Full Faith and Credit Clause of the Constitution helps with that, but would not help Wife in the case posed above (in China).
Query: Will China enforce a foreign Judgment of Divorce if service of process is by mail? [It may be any other country--this query just happened to involve China]. After a little poking around, I come to this conclusion: "It depends. Service using the Service Convention takes four to seven months and can be expensive. Service using an expedited mail service--or as I have done in one case involving Thailand, email and Facebook--with an order for alternate service of process from my Michigan court seems very practical. I discussed Facebook / email service of process on this blog here.
After the U.S. Supreme Court decided Water Splash Inc. v Menon, ___ U.S. ___, 137 S. Ct. 1504 (2017), it is clear that service of process by mail is one of the methods permitted by the Hague Service Convention. The Court's decision was unanimous (8 members; Neil Gorsuch was not yet on the bench during oral argument and did not participate). Eight members of the court held that the convention neither authorizes nor prohibits service by mail. Instead, it does something in between, requiring courts to look to the rules of the sending and receiving jurisdictions. Essentially, the ruling in Water Splash is that nothing in the service convention prohibits service of process by mail. For enforcement purposes, however, the Hague Service Convention, under Water Splash, would require proof that the receiving country permits service by mail. Download Water Splash Inc. v Menon here
Michigan law authorizes alternate means of service of process and service by certified mail, but it seems clear that China does not--for enforcement purposes--permit service by mail. Thus, if it's a status divorce--just to dissolve the marriage, and husband accepts service of process and signs the Judgment, he's submitted to the personal jurisdiction of the Michigan Court. It seems clear that the parties would be divorced--at least in the United States.
Enforcement of a Judgment of Divorce as to distribution of assets located in China: On my way to the forum, I happened upon "The China Blog." That acclaimed business blog recommends that any contract executed between a party in China and a party in the US be written in both Chinese and English. That seems a pretty common sense approach, making it possible for both former spouses to prove in his/her own country that he/she is divorced. The China Blog also says that China is poorly ranked for its enforcement of foreign contracts. Also found on The China Blog: China is not a signatory of the Hague Apostille Convention except in Macao and Hong Kong.
Enforcement of a Judgment of Divorce as to Child Custody or Parenting Time in China: China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Therefore, were I writing any judgment regarding parenting time, I'd make sure that there was an abduction prevention provision regarding parenting time--that it be exercised only in the United States if Mother has custody of the children in the U.S. Based upon the fact that China is not a signatory, it seems clear that a Michigan Court would approve a Judgment containing a provision prohibiting exercise of parenting time in China. Safety precautions--having a child approved for entry into the Abduction Prevention Program administered by the State Department's Children's Issues Office and the U.S. Border Patrol pursuant to UCAPA is essential. See Michigan's Uniform Child Custody Abduction Prevention Act, MCL 722.1521 et seq. Download Michigan_UCAPA.