Divorce & the “diplomatic immunity” defense: What are your rights?

 So what is “diplomatic immunity” and what does that have to do with divorce in this country? Diplomatic Immunity is “A principle of International Law that provides foreign diplomats with protection from legal action in the country in which they work.” (Free legal Dictionary).
This immunity extends to both civil and criminal matters. And that includes divorce, which is usually a civil matter, unless, of course, there are elements of domestic abuse or other crimes. (Obviously, neither Chelsea nor Marc have to worry about this issue but as Secretary of State, Mrs. Clinton may be called upon at some time in her tenure as head of the State Department to grant immunity or waive immunity for a diplomat involved in a divorce on America soil. So, hence, my segue….)
In any event, there was a divorce case in Connecticut a few years ago that dealt with the issue of diplomatic immunity. Again, Free Legal Dictionary:

Divorce is difficult for the spouses of foreign diplomats, as illustrated in the case of Fernandez v. Fernandez, 208 Conn. 329, 545 A.2d 1036, 57 USLW 2115 (Conn., Jul 19, 1988) (NO. 13283). This case involved a U.S. citizen, Barbara Fernandez, who wanted a divorce from her husband, Antonio Diende Fernandez, a U.N. representative from the Republic of Mozambique. Along with the divorce, Fernandez wanted a monetary settlement and property rights to the home the couple owned in a New York suburb. Her husband asked that the courts dismiss her claim on the grounds that he had diplomatic immunity. Under the trial court’s interpretation of the Vienna Convention, a U.S. citizen who marries a foreign diplomat is married until either the diplomat dies or the diplomat’s country grants permission for divorce proceedings. The Republic of Mozambique gave the court permission to grant the divorce but would not allow the court to make a decision on Fernandez’s property or monetary claims. The case went on to the Connecticut Supreme Court, which dissolved the marriage and allowed Fernandez to claim property rights under article 31 of the Vienna Convention.

Article 31 gives diplomats immunity from all civil cases except for those that involve “private immovable property.” The Connecticut Supreme Court interpreted that exception to apply to Fernandez’s claim on the home, which was valued at more than $8 million. Article 31 of the Vienna Convention does not allow the “private residence of a diplomatic agent” to be included in a civil suit. However, the Connecticut Supreme Court declined to consider this article as a form of defense for Fernandez’s husband. The Vienna Convention specifically does not allow exceptions for spouses to seek monetary compensation in divorce proceedings, so Fernandez was not granted any money by the Connecticut court.
The Fernandez decision did not settle all the issues revolving around dissolution of diplomats’ marriages, such as whether U.S. courts can grant a divorce without the permission of the diplomat’s country. Critics of Fernandez say it might cause foreign countries to think twice before granting permission to dissolve marriages because property claims can then also be brought against the diplomats.

So, what is the current status of Article 31 of the Vienna Conventions as it relates to property issues in a divorce by or between diplomats on American soil? Well, it appears that the Act which was promulgated in 1978 stills stands and unless a diplomat is declared “persona non grata” by the State Department, he or she will likely receive diplomatic immunity from both civil and criminal lawsuits in a foreign country. Here in the U.S. the State Department needs clearance from the foreign country’s government (a waiver) before a civil or criminal case can be heard- and that includes divorce cases. What usually happens is, if said permission is not expressly granted by the respective country, the diplomat will usually get a lawyer who will argue that the courts lack jurisdiction pursuant to the Vienna Convention – and he or she will likely win the argument.
But obviously, there are some exceptions. If the home country grants permission to waive immunity for the diplomat and a divorce case is heard on U.S. courts, then property issues as they relate to “immovable property” can be heard (as was seen in the Connecticut case referenced above) by U.S. courts and the complaining spouse would likely get a fair share of said assets. But it does not appear that alimony or cash payments are withing the purview of the Vienna Convention’s article 31.