How to Divorce Someone Who Was Deported

by Teo Spengler
Just because a spouse is out of the country does not preclude a divorce.

Just because a spouse is out of the country does not preclude a divorce.

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Divorcing a spouse who has been deported involves more time and effort than divorcing a spouse who lives down the block. Since the steps to pursue a divorce are governed by state law, you must follow the same procedures as for any other divorce. However, serving the initial papers on your deported spouse may present more of a challenge.

Divorce Procedure

A divorce begins when one spouse initiates a divorce action by filing the required documents in state court. It ends when the court enters a judgment of divorce. All states have procedures for default judgments if the other spouse fails to respond after being properly served notice of the action. The same steps generally apply to divorcing a deported spouse as an in-state spouse, except that service of process may be more difficult.

Serving Divorce Papers

Your spouse has a legal right to be informed about the divorce proceedings so that he has an opportunity to appear in person or through an attorney. As the party seeking divorce, you must serve the summons and dissolution petition on your spouse. Generally, service is accomplished by having a third person who is not a party to the litigation personally hand a copy of the documents to your spouse; this is called personal service. However, service may be more difficult with a deported spouse and depends on your relationship with your spouse, his home country and whether you need to enforce the decree in that country.

Foreign Enforcement of Judgment

Before you can decide how to serve process on your spouse, you need to determine whether it is sufficient for an American court to enforce the divorce decree or whether you also need the courts in your spouse's home country to do so. If the two of you have no children or assets and you are not seeking support from your spouse, a state court judgment of divorce is likely to suffice to simply dissolve your marriage. However, if your spouse has the children or marital property with him, you will probably need to rely on the courts in his country to help enforce the decree.

Serving Process Abroad

If you do not need the divorce judgment enforced in your spouse's country, you can use state procedures to serve him. You can mail the papers to your spouse and ask him to sign an acknowledgment of receipt. Alternatively, you can hire a process server in your spouse's home country to hand him the papers. However, if you do need the judgment enforced by the courts in your spouse's home county, you must use a method of service recognized by that country. In that case, you probably need legal assistance to determine the treaties or rules that govern foreign service in the country in question and how to comply with them.

Missing Spouse

It is also possible to divorce if you can't locate your deported spouse. Most states have procedures allowing alternative service in this circumstance, like service by publication where notice of the action is published for successive weeks in a newspaper. To qualify for service by publication, you must convince the judge that you’ve made a diligent effort to locate your spouse. In some states, like California, you cannot resolve any property or child custody issues in a divorce where service is made by publication, but you can dissolve the marriage.