Citation. Rosenstiel v. Rosenstiel, 209 N.E.2d 709, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 13 A.L.R.3d 1401 (N.Y. 1965)
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Brief Fact Summary
Husband (Plaintiff), a resident of New York, sought to annul his marriage to wife (Defendant) on grounds that her bilateral, consensual Mexican divorce from her first husband was invalid.
Synopsis of Rule of Law
A bilateral Mexican divorce should be recognized as not offending the public policy of New York.
Facts
Husband (Plaintiff), a resident of New York, sought to annul the marriage to his wife (Defendant), also a New York resident. Wife (Defendant) was first married to Kaufman. Kaufman, a resident of New York, obtained a Mexican divorce from wife (Defendant) in 1954. He spent one day in Juarez, where he signed the municipal register, the official book of city residents, and petitioned for divorce in the court there. Wife (Defendant) appeared through her attorney, and she admitted Kauman’s allegations of ill treatment. The divorce was granted the same day and is recognized as valid by the Republic of Mexico. Husband (Plaintiff) argued that the Mexican divorce was invalid and that, therefore, wife (Defendant) was incompetent to contract the marriage in 1956. The trial court annulled the marriage. The Appellate division reversed and dismissed the complaint. Husband (Plaintiff) appealed.
Issue
Should New York recognize bilateral Mexican divorces as not offending that state’s public policy?
Held
(Bergan, J.) Yes. A bilateral Mexican divorce should be recognized as not offending the public policy of New York. Divorce has not been recognized in cases where the parties have had no personal contact with the foreign jurisdiction. In this case, Kaufman was physically within the jurisdiction, personally before the court, “with the usual incidents and the implicit consequences of voluntary submission to foreign sovereignty.†He did establish at least a statutory residence there. Kaufman also carried with him the legal incidents of the marriage. In addition, the wife’s (Defendant) appearance through her attorney gave further support to an acquired jurisdiction over the marriage as a legal entity. “[A]lmost universally jurisdiction is acquired by physical and personal submission to judicial authority.†And so, the divorce must be recognized and the appeal denied. Affirmed.
Dissent
(Desmond, C.J.) Foreign divorces should be recognized only when they do not offend the public policy of the state. A Mexican divorce, however, that is blatantly consensual is against New York public policy. In regards to sister states with short residency periods, the Full Faith and Credit Clause of the Constitution requires recognition of their divorce decrees, but nothing requires the same with foreign divorce decrees. Therefore, New York should in the future refuse to recognize consensual Mexican divorces. Past Mexican divorces should only be recognized because realistically the situation prohibits invalidating tens of thousands of divorces New York residents obtained in Mexico.
Discussion
New York is the only state that has recognized bilateral, consensual Mexican divorces. The court may simply have been working to avoid New York’s archaic divorce law that provided adultery as the only ground for divorce. New York never recognized either ex parte, unilateral Mexican divorces or Mexican “mail order†divorces. In 1966 New York liberalized its divorce law.
