SERVICE FOR INTERNATIONAL LITIGANTS IN A DIVORCE

For the court to make a legally binding decision, the court must have jurisdiction over both the parties and the subject matter. Subject matter jurisdiction means that the court has jurisdiction over the issue in your case. Personal jurisdiction may be established in a few different ways. One of the most common methods is personal service, or when someone is served in person by a process server. However, this may be difficult to do if the opposing party resides in a foreign country.

The United States is party to two treaties that govern service of judicial documents internationally. We ratified the Hague Service Convention in 1969, which states that service of judicial documents to someone in a foreign country is only permissible (1) by mail, (2) by authorities in that country serving them according to their laws and procedures, or (3) through either the embassy or the consulate for that country. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, arts. 8-10, 20 U.S.T. 361 (1969). Therefore, some alternative methods of service that would be available to domestic parties, such as service by publication, would not be available if the opposing party resides in a foreign country. Ninety-one (91) states are party to this treaty.

Additionally, the United States is party to the Inter-American Convention on Letters Rogatory and Additional Protocol (IACAP) for purposes of service documents only. Fifteen (15) states are party to this treaty, all in North, Central, and South America. Unlike the Hague Service Convention, the forms to be sent require the signature and stamp of the Clerk of Court in the US. Additional Protocol to the Inter-American Convention on Letters Rogatory, art. 3, 58 Fed. Reg. 31132 (May 28, 1993). If the opposing party resides in a country that is not party to the Hague Service Convention or the IACAP, you must serve them in accordance with the laws of that country, not those of the United States or the state in which you are filing.

If the opposing party is properly served and fails to appear in court, you may have the option of defaulting them. 735 ILCS 5/2-1301(d). A default judgment in a divorce allows the parties to dissolve the marriage despite one party failing to appear in court. Id. However, the person against whom default judgment was rendered has thirty (30) days to file a motion to set aside the judgment. 735 ILCS 5/2-1301(e). Proper service of process for all parties to a lawsuit is crucial as judgments rendered against parties that either weren’t served or were improperly served are void and may be challenged at any time. 735 ILCS 5/2-301. Therefore, it is important when trying to obtain a judgment for dissolution of marriage from a party outside the United States to follow the service of process laws under either (1) a treaty both the United States and the other country are party to, or (2) the country where the other person is located.