Divorce Across the Border

For 14 months, thousands of New Yorkers have nervously pondered a personal though international question: Is a Mexican divorce valid? In the now famous case of Rosenstiel v. Rosenstiel, a state court last year answered with a shattering no--thus endangering all New Yorkers who remarried after getting Mexican divorces. Last week the state's highest court saved those marriages by upholding the divorces--and raising new questions about the legal mess that drives New Yorkers to Mexico in the first place.

By virtue of laws going back 178 years, New York is the only state that recognizes only one ground for divorce: adultery proved by third-party testimony. Couples determined to divorce often resort to staged infidelity, while those who can afford to, get divorces in other states. In theory, U.S. marriages can be ended only by the state of "domicile"--the state in which the parties really live. In practice, states such as Idaho and Nevada permit divorce after only six weeks' residence. And inconsistent as it seems, New York approves such divorces: the Constitution commands all states to give "full faith and credit" to one another's court judgments.

Sixty-Minute Split. For divorce-bound New Yorkers, Mexico offered advantages. A Mexican divorce takes one day and roughly $500 (v. $3,000 in Reno), including jet fare to El Paso and cab fare across the border to Juarez. The only real requirement is the mutual consent of the parties to the divorce. Thus in 1954, a Rumanian millionaire named Felix E. Kaufmann spent about one hour in Juarez registering as a "resident" and petitioning the local court to grant him a divorce based on incompatibility with his wife Susan. Susan's lawyer duly appeared to admit the allegation and submit her to the court's jurisdiction. So split the Kaufmanns. "Vaya con Dios," said the judge in the traditional Mexican farewell to the divorced.

In New York two years later, the ex-Mrs. Kaufmann married Lewis S. Rosenstiel, aging, multimillionaire boss of Schenley Industries. Later, the marriage soured. With a huge fortune at stake, the Rosenstiels began fighting in court over his contention that her Mexican divorce was invalid, thus annulling their marriage and with it her claims to his money. In 1964, his lawyer (Roy Cohn) finally beat her lawyer (Louis Nizer) with a trial court decision holding that Mexico lacked jurisdiction over Mrs. Rosenstiel because she was in fact a New York resident when the divorce was granted. As a result, she was still Mrs. Kaufmann and had never been Mrs. Rosenstiel.

Balanced Public Policy. In upholding her appeal from that decision last week, the New York Court of Appeals unanimously agreed that voiding past Mexican divorces would be a rank injustice. By a vote of 4 to 2, however, the court sharply split over future Mexican divorces. The majority upheld them on pragmatic grounds. Since the state of domicile is no longer truly relevant, ruled the majority, it makes no sense to insist that a one-day Mexican divorce is substantially different from a six-week Nevada divorce. In light of the hardships caused by New York's divorce laws, suggested the court, "a balanced public policy requires that recognition of the bilateral Mexican divorce be given rather than withheld."

In sharp dissent, Chief Judge Charles S. Desmond argued that "no court is licensed to write a new state policy, however attractive or convenient." He backed legislative change only. Even more sharply, Judge John F. Scileppi argued that the majority's logic would lead inevitably to approval of mailorder Mexican divorces--a not inconceivable possibility, considering the fact that Rosenstiel, in effect, gives New York two divorce laws, one for those who can afford to fly to Mexico, and one for those who cannot.

What the case shows most clearly is the urgent need for divorce reform not only in New York but also throughout a country where one out of four marriages now ends in divorce. To many lawyers, the present diversity of state laws spawns fraud as well as inequity. The answer is a uniform matrimonial code based on modern realities.

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