A New York attorney is presently separated from his wife, under a separation agreement that adequately provides for her maintenance and support. He contemplated going to Mexico for the purpose of obtaining a divorce. His wife will not submit to the jurisdiction of the Mexican Court either by executing a waiver or being represented in person or by attorney. It is intended that process be served on her personally at her residence. Under these circumstances, it is the attorney’s understanding that a divorce so obtained (assuming that she doesnot appear and contest the proceeding) would be voidable, not void, under New York law.
Is it proper for the attorney to proceed with the Mexican divorce after due notice to, and personal service of the process therein upon, the wife?
Our Committee has ruled that where a husband and wife obtain a divorce in a foreign state on grounds that are net valid in New York, the arrangement is proper only “provided there is no imposition on the wife, and the arrangement is fully disclosed to the foreign Court, and the change of residence is actual and in good faith”. (Opinion No. 100).
Canon 29 states, among the duties of a lawyer, that:
“He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice”.
Here, the New York attorney is going to Mexico for the sole purpose of obtaining a divorce, and intends to return to New York and practice of the law. As an attorney, he should not deal with his wire in a manner to impair respect for justice, or to flout the public policy of this State. Since it is conceded that his wife has not agreed to confer jurisdiction on the Mexican Court, and that the divorce decree will be at least voidable in New York, his contemplated actions would be improper.
February 26, 1963