The procedures for divorcing an illegal immigrant who has been deported to Mexico are not that different from divorcing anyone else. However, complications and added expense will likely arise if you have to arrange personal service of the legal documents on your spouse in Mexico. The U.S. Department of State describes the process for service in Mexico, called letters rogatory, as “a time consuming, cumbersome process.”
The fact that your spouse is illegal and has been deported does not alter the basic steps you must take to obtain a divorce. Family law is handled on the state level so you must follow the laws and procedures that govern divorces in the state with jurisdiction over you and your marriage. The state where you live usually has jurisdiction, unless you lived there for a short period of time. In that case, check with the state where you lived previously.
You must decide which legal grounds you should rely on. No-fault grounds for divorce, such as irreconcilable differences or separation for a period of time, are the most frequently used. Fault grounds for divorce include adultery, addiction, physical cruelty, abandonment and insanity. Each state has specific requirements for meeting these legal grounds.
The first step in filing for divorce is the preparation and filing of a summons and petition for divorce. These documents set forth the facts of the marriage and the reason you are seeking a divorce. The petition and accompanying documents must be properly served on your spouse who can waive jurisdiction and sign a document accepting service. If your spouse won't voluntarily accept service of these papers, you must accomplish proper service in Mexico. Once you have served your spouse, you can proceed with your divorce case in the usual manner in your state of residence. If your spouse in Mexico does not respond to the divorce papers, he will be judged in default. A default judgment means the court can act in his absence and grant you a divorce. However, some states still require you to prove fault-based grounds, such as physical cruelty, for a divorce to be granted.
If your spouse will not voluntarily accept service, you must attempt to officially serve him in Mexico. Mexico is a party to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters. Accordingly, foreign documents must be served through the Mexican Central Authority to be officially recognized. Mexico is also a party to the Inter-American Convention on Letters Rogatory and Additional Protocol, which further limits the procedures for serving documents in Mexico. The U.S. Department of State's website has information on letters rogatory, or letters of requests, which must be used to serve someone in Mexico. If you properly attempt to serve your spouse through the Mexican government and he cannot be found, you can ask the family court in your state to allow you to serve notice by publication in a newspaper of record in your spouse’s last known place of residence.
If your divorce judgment contains provisions for custody and financial support for you or your child, serving your spouse through the proper channels is a requirement. Even if you do follow the letter of the law, enforcement in Mexico of a custody order will be difficult. The United States and Mexico are both members of the Uniform Child Custody Jurisdiction and Enforcement Act, which attempts to legislate international custody disputes. However, the UCCJEA does not address the issue of financial support which will be very difficult, if not impossible, to collect.
References & Resources
- Travel.Gov.State: International Judicial Assistance Mexico
- Travel.Gov.State: Service of Legal Documents Abroad
- Idaho: Default Divorce
- Juvenile Justice Bulletin: The Uniform Child Custody Jurisdiction and Enforcement Act
- Houston Case Law Monitor: Niessen Velasco v. Ayala (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)