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Alice is a national of Afghanistan, Bob is of Afghanistan and the U.S.. Bob gained U.S. citizenship as a result of having been in the employ of the U.S. military as a translator and subsequently having been provided refugee status and lived in the U.S. for sufficient time. Bob has a well-founded fear to enter Afghanistan; Bob may be killed.

Alice lives in Afghanistan, Bob in California, and they get married.

The marriage is arranged remotely due to COVID and/or for Bob’s fear for his life, and they are made husband and wife under Afghanistan law.

Alice moves to California and eventually becomes a citizen of the U.S. herself. Alice and Bob become father and mother of children each becoming a dual citizen.

May a court of the State of California or the U.S. dissolve the marriage if either one of them files for divorce at?

May the one keeping the children after divorce seek child support at a California or U.S. court?

Can a court of Afghanistan adjudicate either matters under California and not Afghanistan’s law?

Edit: Some questions and comments required clarity for this hypo; added more substance.

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  • "The marriage is arranged remotely due to COVID and/or for Bob’s fear for his life, and they are made husband and wife under Afghanistan law." Not sure that this point is terribly important and it complicates the question to add an additional legal issue ("are they legally married in the first place?").
    – ohwilleke
    Jul 6 at 22:00
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If both parties are legal, permanent residents of California, their marriage is recognized under Californian law no matter where it originated (provided that the marriage doesn’t violate Californian law, e.g. if Alice were a minor). Alice and Bob would file for divorce in California and the matter would be adjudicated under a Californian court and under Californian law. After these proceedings, Alice and Bob would still be married in Afghanistan (and maybe other foreign countries? That’s a tricky question, so if someone else can figure it out please leave a comment!) but the US would cease to recognize the marriage. In no case would either a Californian or Afghan court make a ruling under the other’s laws.

As far as child custody, property, etc. the divorce would essentially proceed as a normal divorce case, although things could become complicated if Alice and Bob own property in Afghanistan, which would usually still be able to be appropriated by a Californian court but, once again, the matter is complex since Afghanistan still recognizes the marriage.

As you can tell, a divorce of this nature is not as complicated as one might think, but nevertheless could create some complicated legal situations. Also, marriage is regulated state-by-state, so other states may have different rules regarding foreign marriages. As always, the best path of action is to consult an attorney who specializes in divorce.

Edit: A commenter brought up the issue of whether California would recognize a marriage where both parties weren’t present. While this varies by state, California generally doesn’t allow so-called “proxy marriage” unless one of the parties is deployed in the military.

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    @kisspuska some jurisdictions do not recognize marriages where the parties to the marriage are not both physically present at the ceremony. If California is such a jurisdiction, then this answer may be incorrect. Without a discussion of that question, this answer is certainly incomplete.
    – phoog
    Jul 5 at 10:03
  • 4
    This reminds me of a story about a couple getting married in one country, and divorced in another. When one of them died, the survivor did not inherit (because they were divorced) but had to pay taxes as if they did (because the other country's tax collectors refused to acknowledge the divorce)
    – Stef
    Jul 5 at 10:32
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    Whow, that is f**** up - never heard of a case like that. Especially as generally taxation in case of death depends on the estate size, so a declaration of inheritance is normally what is needed and ends this. I would call this story hogwash - because how would the tax collectors know how much to collect, without any paperwork for the inheritance?
    – TomTom
    Jul 5 at 16:32
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    Not really. See, inheritances can be complex - so generally there should be either not really anything to tax (i.e. poor people) or a court decision OR the paperwork from someone who managed the estate showing what at what value was distributed to whom. And that is generally also what is taxed. Even with all you cite, there may well be no inheritance as disavowing even a child is permissible under certain circumstances, so one can not just assume someone inherited, under no circumstance. Especially when you get cross country - even not recognizing a divorce.
    – TomTom
    Jul 5 at 17:18
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    You can usually reject an inheritance (for example if the deceased was up to his ears in debt). You should be able to reject an inheritance that you don't have any rights to as well. But who knows... That's probably things that some lawmakers never thought about.
    – gnasher729
    Jul 5 at 19:08
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May a court of the State of California or the U.S. dissolve the marriage if either one of them files for divorce at?

If either party has resided in California for the requisite period of time under California law, a California court may dissolve the marriage. (Federal courts almost never have jurisdiction over a divorce and child custody case, outside the most extreme and unusual circumstances, e.g. in admiralty jurisdiction, perhaps).

Whether or not this divorce would be recognized as valid under the Islamic law of Afghanistan is beyond my competence, but it is quite plausible that it would be recognized as a valid divorce. Islam has allowed divorces (in some cases, without government sanction or advanced approval from religious officials) since its inception.

May the one keeping the children after divorce seek child support at a California or U.S. court?

In U.S. courts, jurisdiction to decide these matters is governed by the federal Parental Kidnapping Protection Act and the state Uniform Child Custody Jurisdiction Act.

There is also an applicable treaty called the Hague Convention on the Civil Aspects of Child Abduction, 1343 U.N.T.S. 89 (Oct 25, 1980), T.I.A.S No. 11,670 (entered into force December 1, 1983, enacted into U.s. federal law through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq.), a multilateral treaty ratified by 101 countries as of July 2019, provides an expeditious protocol for the return of a child unilaterally removed by a parent from one member country to another. to which the U.S. and some but not all nations are a party. As of the date of this post, Afghanistan is not a party to this treaty.

These statutes and treaties are drafted with the other laws in mind and collectively all generally require a custody or child support determination to be made by the "home state" of a child, as defined in those laws in a more or less consistent manner. In the easy case, where the children have lived in a particular state for a long time and haven't recently been moved from it, that is their home state. In edge cases, the determination can be quite technical.

Assuming that the children live in California with their parents, or at least one of them, California would have jurisdiction over these matters and would not recognize a child custody ruling from Afghanistan which is not the "home" of the children.

Can a court of Afghanistan adjudicate either matters under California and not Afghanistan’s law?

Afghanistan's constitution provides that the supreme law of the country is Islamic law, and implicitly, Sunni Islamic law (of which there are four main schools of interpretation in addition to some minor ones, two of which would be plausible candidates, the school historically most common in Central Asia and Pakistan, and the school historically most common in Saudi Arabia which was the principle financial sponsor of Afghanistan's theocratic Taliban movement).

It would be extremely likely that both members of the couple are Sunni Muslims, in this context, although the OP does not specify. So, it is likely that the transnational principles of Islamic law would be applied by Afghan courts to determine if there was a divorce (something that under Islamic law is sometimes judicially recognized as having happened based upon the conduct, acts, and rituals carried out by the parties, as opposed to something that must always be something that the court "grants" as in Western legal theory, although there would be cases when an Islamic law court could grant a divorce rather than merely recognizing that it had happened).

If Afghan courts divorced the parties, they would apply Islamic law (assuming that one or both of them is Muslim) rather than California law.

The choice of law issue for a California court deciding if it would honor a divorce from an Afghan court would be tricky. Under U.S. law, one of the parties to the marriage must reside in the jurisdiction of the country where the divorce is conducted to end the marriage, but both reside in the U.S., so ordinarily U.S. law would not recognize the divorce (and a long line of cases involving Mexican divorces would not recognize the divorce). But if both parties consented to the jurisdiction of an Afghan court, this might overcome the jurisdictional issues and suffice to cause the ruling to be honored in the U.S., and a California court would still not honor an Afghan court's ruling on the status of the children, although it might honor an agreed child custody arrangement entered into by the parties if it was not otherwise objectionable, patterned on an Afghan court's ruling but converted to English language legal terminology.

Still, bureaucratically, the Afghan court ruling would probably have to be "domesticated" to be practically useful within the U.S., for example, in child support enforcement matters or to authorize a remarriage in the U.S., even if Alice and Bob weren't actually re-divorced.

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  • Thank you for all these additions!
    – kisspuska
    Jul 6 at 23:07

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