If only they actually made these. (OttomanJackson, via Wikimedia Commons)

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.

Richard Burton & Elizabeth Taylor, "Divorce His, Divorce Hers", 1973. Public domain (image pre-1977 without assertion of copyright).
Richard Burton & Elizabeth Taylor, “Divorce His, Divorce Hers”, 1973.  Public domain (image pre-1977 without assertion of copyright).

Serving process abroad touches virtually every aspect of civil litigation.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I handle divorces, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of that Ned Stark guy into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.
This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.)

Second of all (setting my incredulity aside), let’s say you do handle divorces exclusively, no visa applications ever.  What if your client’s soon-to-be ex-wife is Chinese?  What if she threw her hands up one day and in a fit of pique yelled at him “that’s it!  I’m going home to Beijing!” before she ran home to Mom and Pop?  Your case is only simple on its face.  Maybe they don’t have kids.  Maybe they don’t have property to fight over.  Maybe the only issue before the court is whether to dissolve the marriage.

You still have to initiate the proceedings.  And that’s not going to be as easy as just tossing the petition into a FedEx envelope and jetting it off to her parent’s house.  Serving process in China requires a very particular procedure.  If the defendant (or respondent— however the other spouse is referred to in the petition) is in the military, it can be even more complicated.

And woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (see more here).  And it is easily avoided if the litigant and the attorney are patient and understand what requirements they must observe beyond just the rules of the venue court.

The point here is that serving process abroad touches virtually every aspect of civil litigation, and if the plaintiff doesn’t do it properly…

THIS is Ned Stark.
THIS is Ned Stark.

 

A couple of years ago, I ran into a law school classmate at a happy hour hosted by our local bar association.  “Hey, you handle service of process in other countries, right?”  Yeah, I answered.  Quite a bit of Hague Service Convention stuff.

“Great.  Lemme ask you a question…”

He was handling a divorce case, representing the wife.  They had two kids and a mortgage, both had decent jobs, and both worked hard to make a better life.  Your typical Midwestern existence, except for one thing: the husband was Mexican, and had “overstayed his welcome,” as it were.  For whatever reason, he’d returned to Mexico, and resumed residence with his parents.  He kept in touch with his wife and kids, and sent a few pesos north now & then as he was able, all while trying to get his green card the “right way” (by “standing” in the mythical line at the Embassy).

One day, the wife decided she needed to move on with her life.  Not an unreasonable decision given the state of U.S. immigration law, though it certainly raises a question about her level of commitment in the first place.  She hired my classmate, a pretty top flight lawyer, to file the petition.

His question to me, as we sipped our Boulevard Pale Ale:  “the judge told me if I didn’t get him served within a week, he was going to dismiss the case.  When I told him it would take longer because the guy’s in Mexico, he said he didn’t care if he was on the moon, just get it done.  So I mailed everything to him.  That’s okay, right?

Now, being Norwegian, I’ve always felt a sort of fraternal connection to Edvard Munch (I’m more a fan of his French contemporaries, but I digress).  Naturally, my reaction was this:

munch_edward_3
That bad.

No!  It’s very much not okay!  If you don’t march down to the court tomorrow and file a notice that you need sufficient time to do it properly, the following will happen, in order:

  • The defendant fails to answer the petition.
  • The judge gladly hands you a default judgment, granting everything you’ve demanded in payment, just to clear his docket.
  • Woo hoo!  You have a very happy client, who now owns her house in fee simple absolute, who now has sole legal and physical custody of the kids, and who can now marry that handsome fellow she met in the frozen foods section at Piggly Wiggly.
  • She tells all of her friends at the PTA that you’re the greatest attorney in town, and they will all flock to you because their husbands are ne’er-do-wells, and they want to find a handsome fellow at Piggly Wiggly, too.

But here comes the nightmare…

  • Five years on, the Mexican (ex-)husband gets a letter from the U.S. Embassy in Mexico City.  Congratulations, sir.  Given that you are a hardworking father of two U.S. citizen children and have waited patiently these many years, you may now enter the United States and freely participate in our economy.
  • First thing he does when he gets back?  He goes home, to find that his kids address Piggly-Wiggly-Guy as “Dad”.
  • He hires the nastiest lawyer he can find to re-open the action that took away his house and his kids.
  • Naturally, because he was served in Mexico in a manner contrary to that country’s declarations to the Hague Service Convention, he is granted a new hearing.*
  • In which he prevails, forcing Mr. and Mrs. Piggly-Wiggly-Guy to cough up half the value of the house they’ve been happily living in, thinking she owns it in fee simple absolute.
  • And in which Dad is granted 50/50 custody** of the children and thus awarded child support because Mom makes a whole bunch more money than Dad does.
  • Which facts make Mr. and Mrs. Piggly-Wiggly-Guy ponder how to best end your career as a lawyer.
  • Their new lawyer calls me for an opinion letter to include in his petition for damages.  I decline, of course, but I can’t save you.
  • You call your malpractice carrier, who promises to settle the claim, and then drops you like a hot rock.
  • The PTA moms stop calling.
  • Sallie Mae does not.

Okay, perhaps there’s a wee bit o’ hyperbole there.  But the real takeaway?  I don’t care if the judge orders you to serve somebody by mail in a Hague country that objects to it… DO. NOT. DO IT.

Politely tell the judge he’s wrong, call in some help, and do it right.

 


* Why does the Hague Service Convention matter?  Because Sandra Day O’Connor said so.

** We have a new 50/50 presumption in Missouri, which was not in effect on the date of the ill-fated scream I emitted at the bar association happy hour.  [For crying out loud, yes, this is a fabricated story.  In part.  The question was for real, and the answer is substantially a reflection of my real response.  The background… all made up.]

My parents divorced around the time I finished high school.*  The court ordered Dad to provide support to Mom for both me and my sister as long as we were full time students, even in college.  I finished my bachelor’s degree about the same time my sister finished high school, and the old man decided he was done writing checks altogether; it didn’t matter that she was about to start college herself.  He wasn’t so much a deadbeat dad as he was insistent that his obligation was fulfilled (and that he knew more about family law statutes than the judge did).  The Child Support Recovery Unit saw things differently, and he drew a federal pension, so garnishment was pretty straightforward.

Child support recovery isn’t as straightforward when the “debtor” parent leaves the United States.  It’s downright impossible if s/he goes to a country that views parental obligations in a dramatically different way than ours does.  International child support enforcement is an exceedingly tough nut to crack, for a hundred different reasons.

But at least some help is on its way.  The Hague Child Support Convention will enter into force for the United States on January 1, 2017, so a mechanism will be in place soon thereafter for the enforcement of support orders (as well as alimony orders, under certain circumstances).  We can’t ascertain as yet precisely how the United States will administer requests under the treaty, but keep an eye on this space for an update once details are published; all indications are that the Department of Health and Human Services will be the designated Central Authority, but procedural details are sketchy.

With the exception of Burkina Faso (look it up—that’s a fiercely proud country right there), the treaty is only effective between the U.S. and Europe, but that just happens to be where a significant number of non-custodial parents live.  Of course, that doesn’t help with Asia, Latin America, or the vast majority of Africa.  But it’s a start.

 


*This is a hot-button issue for me.

[Originally published at vikinglaw.us]

Your client is a G.I.— a grunt, a leatherneck, a swabbie, or a flyboy.  While he was stationed overseas, he met a girl who he thought was the love of his life.  After a whirlwind romance, they got married, and she followed him stateside.

Eventually, things went south.  For whatever reason, marriages end every day, but for military families they are particularly heart-wrenching, especially when the non-military spouse is from another country.

When that foreign spouse leaves the U.S., the divorce process is decidedly more difficult because service of process isn’t quite as simple as hiring a server to hand her the documents.  Doctrines of international and foreign law must be observed.  Those doctrines vary wildly from country to country, so what is appropriate in England or Belgium might be expressly prohibited in Germany or Japan.

Family lawyers representing military clients must be meticulous about ensuring that service is effected properly—even if the court is unaware of the proper procedure—and just reading the applicable treaty or status or forces agreement is not enough.  The nightmare scenario if the procedure is not carried out correctly: the foreign spouse has a change of heart, returns to find her husband married again… and files an action to nullify his later marriage.  Far-fetched, of course, but possible.

(Where a spouse seeks to serve a U.S. servicemember stationed or deployed abroad, it gets even more complicated.  We elaborate here.)

 

[Originally published at vikinglaw.us]

A particular quirk arises in serving a defendant if he or she is a U.S. servicemember stationed abroad.  For the most part, I explain to clients that such an objective is a tough one, so they might have to simply wait until the defendant returns to the United States.   [This is not, as one might assume, due to the Servicemembers Civil Relief Act (formerly the Soldiers & Sailors Civil Relief Act, 50 U.S.C. §§ 3901-4043).  That statute stays proceedings, tolls statutes of limitation, and provides a host of other protections to uniformed defendants, but it does not address service of process.]

Defendants must, of course, be served according to the rules of the forum court.  But when a servicemember is stationed in another country, they can only be served within the strictures of applicable international agreements.   The Hague Service Convention is chief among the governing treaties, but no less important are individual Status of Forces Agreements (SOFAs), which govern access to U.S. installations by civilians and local authorities.

Herein lies the quandary, with several contradictory components.  Unless the defendant has a discernible civilian address (that is, not located on a U.S. installation), standard methods of service will be unavailable.

  • Hague service is not available without an address.  If a defendant lives in a barracks or other on-post* housing, then they simply don’t have an address.  Of course, “1234 Eisenhower Drive” or simply “Building 2375” may be valid for telling friends where to gather for a social engagement, but the addressing system is most likely unknown to local authorities (both civil authorities and the post office).  It has no legal effect, and can change by the simple act of a clerk.
  • Even if the defendant does have a discernible on-post address, mail is generally not delivered to such an address, and local judicial authorities would most likely be denied access to the post under the governing SOFA.  (Process servers, where they exist, are afforded even less accommodation by post security.)
  • Forget about serving them at the office, especially if “the office” is an artillery range.  Even if a local judicial officer does gain access, those officers generally avoid serving anybody at work.
  • The Posse Comitatus Act prohibits the use of Army and Air Force chains of command for civil purposes, and various Naval regulations likewise create insurmountable roadblocks.  Urban myth advises that a plaintiff simply needs to ask a JAG (Judge Advocate General) office to effect service but this simply isn’t accurate.

So what is a plaintiff to do?  Several options are available, although odds of success are lower than with service on a non-military defendant.

  1. Wait.  Simply hold onto the summons until the defendant returns from his tour of duty overseas, and serve him upon his arrival stateside.  Of course, the court must be made aware of the hurdles to proper notice, so an order excusing non-service may be issued to protect the plaintiff from dismissal.
  2. Request leave to serve via U.S. mail at his known APO or FPO (Army/Air Post Office or Fleet Post Office) address.**  APO/FPO addresses are not tied to geography like a street address is.  If a unit stationed in Germany is temporarily transferred to Kuwait, a soldier’s address may not change–or if it does, the APO staff in Germany will automatically forward his mail to the new address as a matter of course.  In short, the soldier will get his mail.
  3. Request leave to serve by electronic mail.**  All U.S. personnel are issued email addresses for official use, and they are generally permitted to use those addresses for personal communication while stationed abroad.  Moreover, given the ubiquity of free email servers, it is nonsensical for an active duty defendant to argue that he/she does not have a personal email account.  And like APO/FPO addresses, email addresses are tied to an individual, rather than to a physical location, so treaty considerations are less daunting.  (E-mail’s acceptance as a means of effective service is growing, slowly but surely.)
  4. If the defendant happens to live in civilian housing (“on the economy”) and his address can be ascertained, serve via traditional channels.  This may come in different forms, so significant brainstorming is necessary.

Serving a G.I. isn’t as easy as serving other defendants, but it may still be possible with creative thinking.


The author is an Army brat.  An Army installation is referred to as a post, and it is painful to call it anything else.  Not a fort, not a base, and certainly not a campus.  With all respect to the Air Force, Navy, and Marine Corps, you’ll have to substitute your own terminology on this one.  Post, base, installation… you get the idea.

** Use of APO/FPO mail or of U.S. military e-mail servers may run afoul of the Posse Comitatus Act.  The issue has not been addressed in case law as of this writing.