Case Update: Simultaneous Actions, Separation vs. Divorce, and Recognition as a matter of Comity

Two Italian nationals met, married in Italy, and then subsequently moved to the United States, where they made their marital home for 40 years, and had their children.  Both became US nationals. On a trip to Italy in 2015, the spouses had a dispute, and the Husband returned to the United States without his Wife.  In 2016, the parties filed a separation action in Italy based on consent, which was ultimately dismissed.  They then filed a non-consensual separation action in Italy.  A separation action in Italy is different from a divorce action.  It must precede a divorce action, but a divorce action does not need to follow (if neither party wants to request a divorce).  Both parties had Italian counsel, and the Wife ultimately fought the Italian separation action.  Despite her overtures, it continued.  In 2018, she filed a divorce action in New Jersey.  By now, both parties were back in New Jersey.  Upon a request by the Husband, the NJ court dismissed its divorce action, giving deference to the Italian action as a matter of comity.  On May 14, 2019, the Italian court issued a final separation ruling.  It provided for the Wife’s support, but did not divide their assets.  It also, of course, did not divorce them.  

On this appeal, on May 8, 2020, the NJ Superior Court, Appellate Division, in Russello v. Russello, (Docket No. A-2019-18T3), overturned the NJ divorce action’s dismissal.  Even though the Italian action was filed first-in-time, and both spouses were full participants in the action with their Italian lawyers, the Italian action did not involve substantially the same claims and legal issues.  In other words, it did not actually divorce them and it did not resolve the distribution of their assets.

For the NJ court to dismiss the NJ action as a matter of comity, the party seeking its dismissal would need to show that there was an earlier filed action, that it involved substantially the same parties, claims, and legal issues, and that there would be adequate relief in the first action.  Assuming those prongs are satisfied, the party arguing against the NJ’s action’s dismissal must then show that the equities weigh in favor of not dismissing, such as the Italian case was an attempt at forum-shopping, the Italian action was filed in bad faith to pre-empt the NJ suit, deferring to the Italian action would violate public policy, or the Italian action would cause great hardship or inconvenience.

As a note - the Italian courts apparently needed to resolve the separation action first, before either party could ask for a divorce in a separate second action in Italy.  It appears that the NJ court did revive its divorce action before either party filed for divorce in Italy.  

NOTE: The NJ court notes that this opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited.

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