Illegal immigrants have almost the same legal rights as citizens in the U.S. -- at least with regard to marriage and divorce. The Fourth and Fifth Amendments of the Constitution guarantee immigrants equal protection under the law and the same access to U.S. courts.The legal process to divorce an illegal immigrant is the same as the process to divorce a citizen.
Determine where you need to file for divorce, usually with the clerk of court in the county where you live. You might have to wait until you have lived in your jurisdiction the required period of time if your spouse has left the country.
File a summons and verified complaint for divorce and pay the required filing fee. Keep a stamped copy for yourself.
Serve a copy of the summons and complaint on your spouse by hiring a process server or law enforcement officer. In some states, you can serve him by certified U.S. mail. Have your spouse served in the country where he is currently living if he has already left the country or been deported. If he is in jail awaiting deportation, have him served in jail. Finally, you may ask family court personnel about the possibility of publishing notice in a newspaper if you do not know where your spouse is.
File a document signed by the process server, officer or publisher with the court to prove your spouse was given proper service.
Wait the required time -- typically 30 days -- to give your spouse an opportunity to respond. Even if he is in another country, he can respond through the mail. If your spouse responds, you might have to involve a guardian ad litem if children are involved or go through mediation, depending on the laws of the state where you file.
Ask the court to schedule a hearing and let your spouse know the date if he responded to your complaint.
Attend your hearing with witnesses, if required. If your divorce is granted, court personnel will ask you for information about your spouse, including his Social Security number. If necessary, you must tell them he does not have a Social Security number.
Tips & Warnings
Be aware that your spouse might be deported at any time if he is an illegal immigrant, although the court will not notify U.S. Immigration and Customs Enforcement of his immigration status.
If your spouse is living overseas at the time you divorce him, serving him with divorce papers may be more of a challenge. It is possible to serve divorce papers by mail overseas. It is also possible to use a procedure known as "letters rogatory" if your spouse's home country is party to the Hague Service Convention, a treaty by which foreign governments cooperate with each other to serve legal documents.
As with any other divorce proceeding, judges will determine custody based on the best interests of the child standard. It is possible you will receive sole custody, depending on your spouse's circumstances and location, but it is also possible you will share custody.
References & Resources
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