A few months ago, I offered up a nightmare scenario to illustrate the importance of properly serving under the Hague Service Convention. After I mentioned it in a CLE lecture (about legal blogging, of all things), a colleague asked me a question that compelled me to revisit the issue. “Here’s a thought,” he said… “what if somebody wins the lottery?” Alarm bells started going off in my head. Holy cow, I thought. That’s an even bigger nightmare than I’d envisioned.
My original hypo suggested a divorce case, wife a U.S. citizen, husband an undocumented Mexican immigrant. He goes back to Mexico, and she petitions for divorce, but doesn’t serve properly (she mails it, rather than going through Mexico’s Central Authority for the Convention). The court enters a default in her favor despite the ineffective service, and she gets sole custody of the kids, quiets title to the house, and gets back out into the world as a woman unencumbered by an absent spouse.
But the husband shows up on her doorstep a few years later, only to find that she’s married again– this time to a very nice fellow she met at the Piggly Wiggly. The husband is justifiably angry that his kids are addressing Piggly-Wiggly-Guy as “Dad” and finds a really good lawyer to reverse the carnage.
What result? Well, I imagine that the husband would get his house & kids back, unless the judiciary loses its collective mind. And I also imagine that counsel for the petitioner is going to be hauled before OCDC… and then into a malpractice suit. Not fun for the lawyer.
Now add a state-sanctioned jackpot wad to the story. Let’s say the wife throws a sawbuck into an office lottery pool. She and her officemates split a $300 million prize– after taxes, she has a nice, tidy twenty mill to play with.
Mightn’t that constitute marital property? Of course it might.
But in which marriage? Not the one with Mr. Piggly-Wiggly-Guy in it. The malpractice stakes just got a bit higher, no?
Point is, it’s up to the petitioner to properly serve the respondent. If the petitioner’s lawyer doesn’t do the cursory research to learn the right way, he’s not only doing his client a disservice, he’s exposing his practice to some very nasty risk.
Readers here can very easily find a how-to primer about the countries most frequently served by U.S. and Canadian litigants, both within the Hague community and without. Just scroll up to the top of this page and type the country name. Go ahead… we’ll be here for you when you get back.