This 14th post in the “Divorce & Hidden Money” series focuses on an ex-husband who lived offshore and had not paid child support or spousal maintenance for decades. In such situations, letters rogatory might be filed to help gather evidence about any assets hidden offshore. If assets are hidden offshore, another remedy may be filing a lawsuit alleging assets have been fraudulently transferred.
For thirty years the ex-husband in Janet O. v. James O., slip op. 51985 (Sup. Ct. N.Y. County, October 17, 2006) had not made one single child or spousal maintenance support payment. By living in places like Barbados, the Dominican Republic and Mexico, the ex-husband had offshore asset protection and could hinder enforcement proceedings brought for his ex-wife &/or their three sons. After the divorce, the ex-husband remarried and adopted his new wife’s two daughters. Meanwhile, his ex-wife and three sons were relegated to a life of hardship, poverty and public assistance.
One of their sons even had to quit college to become a construction worker to support the ex-wife. Likely to have little practical effect on the absconding ex-husband were: the seizure of New York bank accounts, income tax refunds and lottery winnings; the denial of new and renewed passports; driving license restrictions and the referral of cases for criminal prosecution. See generally N.Y. Dom. Rel. §§ 244; 244 (a) – (d) & 245, Family Court Act §§454, 458-a, 458-b & N.Y. Civ. Prac. L & R § 5241. Given the ex-husband’s default for decades, the Janet O. Court did however, indicate it would seek the ex-husband’s extradition.
FILING LETTERS ROGATORY
Although it was not financially feasible for the above-mentioned ex-wife, a letter rogatory, (a.k.a legal assistance request or letter of request), might have helped her situation. In some cases, letters rogatory can be effective against a divorcing spouse or non-custodial parent hiding assets offshore. By filing letters rogatory, one may search for secret bank accounts &/or collect financial evidence from witnesses residing offshore. Letters rogatory are often sought pursuant to The Hague Convention, Taking of Evidence (1970) No. 20.¹ A New York court may issue a letter rogatory to a foreign court as contemplated by Fed. R. Civ. P. 28 (b); Fed. R. Civ. P. 4(f)(2)(B); &/or N.Y. Civ. Prac. L & R 3018. N.Y. Civ. Prac. L & R 3108 for example, says: