The stay of a spouse in the USA is usually aimed at improving living and material conditions in Poland. However, it does not always contribute to improving the well-being of the family left behind in Poland. In such a situation, the intervention of relevant Polish and US authorities is necessary.
The United States has not acceded to the 1956 Convention on the Recovery Abroad of Maintenance, and for this reason, the procedure for claiming maintenance is different than in relations with other states that are parties to this convention, or with European Union countries. Information stating that alimony in the USA is claimed based on the New York Convention is incorrect.
In August 1988, during the conference of the Pan-American National Association for Child Support Enforcement in New Orleans, concerning the enforcement of US court maintenance orders, a representative of the Polish Ministry of Justice submitted a declaration to state governments regarding Poland’s recognition of foreign court judgments in maintenance cases on the principle of reciprocity. In response, the justice departments of several states, and now all of them, have issued declarations recognizing Polish maintenance judgments on the principle of reciprocity.
Applications are accepted and forwarded by the District Courts of the place of residence of the person entitled to receive maintenance. The application must be accompanied by a judgment ordering maintenance, a court decision establishing paternity or its recognition if it concerns extramarital children; the application may also be submitted by the office paying maintenance. The application may concern current as well as arrears of maintenance. In principle, the application may concern children or children together with a spouse, but I have conducted proceedings before a Polish court for the annulment of maintenance enforcement concerning a spouse.
The Polish district court sends the application directly to the Superior Court /Superior Court of New Jersey Family Part – Probation Services/, where it is registered and where the maintenance enforcement procedure begins, in accordance with the law of the given state. The Polish court’s decision also becomes a US court’s decision; although the party has the right to defense and appeal, this only prolongs the process. The US court, in its decisions, orders monthly installment payments to its office, which then forwards these amounts to the maintenance recipient. The payment amount is the Polish currency converted into US dollars, along with interest spread over installments. To suspend or annul payments, an application must be made to the Polish court for the annulment of enforcement and its prompt forwarding to the US court, because US courts do not respect any evidence, e.g., sending money to the maintenance recipient’s address, as the Polish court’s decision is binding for them, being a decision issued on behalf of the Polish government.
I know of cases of unjustified forwarding of applications despite timely maintenance payments. Polish courts do not carry out these checks and rely on the plaintiff’s statements. The defendant’s right to defense is violated, as is the lack of possibility to submit an appropriate response and proof of payments – there are no relevant legal regulations in this regard.
A few practical tips on this matter:
- current and timely payment of maintenance in accordance with the Polish court’s decision, with receipt,
- participation in hearings for the determination of maintenance, and appropriate defense; avoiding hearings results in maintenance being awarded according to the plaintiff’s request by default judgment,
- in case of malicious and unjustified forwarding of an application to the USA, filing a complaint against the district court’s decision with a request to withdraw enforcement from the USA,
- in case of job loss or deterioration of material conditions – filing an application with the court in Poland to reduce or annul maintenance,
- avoiding payment, refusing to accept mail, changing residence – this may lead to coercive measures, including arrest
It should also be remembered that in Poland, when awarding maintenance, the court also awards statutory interest in case of refusal or untimely payment, which is added monthly to the maintenance installments, leading to large debts /interest on interest/. There are also cases where a party obtains an enforcement title against the defendant’s property, including savings deposits accumulated in Poland, and upon returning to Poland, the defendant may face criminal proceedings for evading family support, punishable by up to 3 years of imprisonment.
