How to Get a Divorce When Your Spouse Isn't a U.S. Citizen and Left the Country

By Larissa Bodniowycz, J.D.

How to Get a Divorce When Your Spouse Isn't a U.S. Citizen and Left the Country

By Larissa Bodniowycz, J.D.

Married couples often start living apart before they file for divorce. When one spouse is not a U.S. citizen, they may return to their home country where they have more support from friends and family. If you've found yourself in this situation, there is good news. You can still obtain a divorce from your spouse who has left the country, but you must meet residency requirements and properly serve your ex-spouse with notice of the divorce proceedings.

Two women speaking at a table with laptops and documents

Residency Requirements

For a divorce to be legally binding, the court that issues it must have legal authority to hear the case. This is referred to as having jurisdiction over the case. Each state has its own laws regarding when its courts have jurisdiction over a divorce case.

All states have some type of residency requirement for jurisdiction. Only one of the spouses has to meet the requirement. For example, to get divorced in California, at least one of the spouses must have resided in California for six months. Minor leaves of absence, like vacations in another state, will not prevent the residency requirement from being met.

Serving Your Spouse

To obtain a legally binding divorce in any state, you must provide your spouse with notice of the divorce proceedings and their duty to respond. Providing this formal legal notice of the proceedings is called “service of process," or “serving" the divorce papers. Properly serving an out-of-country spouse is usually the most challenging part of obtaining a divorce from a spouse who has left the U.S. It involves the intersection of U.S. federal laws, treaties, state laws, and the laws in the country where the spouse is living.

Much of the complexity of serving an out-of-country spouse can be avoided if your spouse will agree to accept the divorce papers and sign a form affirming that they received them. Even if you are angry with your spouse, you should try to stay calm and convince them to voluntarily accept service of the divorce papers. This will save you a lot of time, money, and stress.

If your spouse will not agree to voluntarily accept service, you must figure out the proper process for service and execute it. This could require the involvement of the U.S. Marshal's Office, authorities in the country where your spouse is residing, or Letters Rogatory, depending on the circumstances. An attorney experienced in international divorces can help you avoid making mistakes when serving your spouse.

Other Considerations

Residency and service requirements are the two most common issues when getting a divorce from a spouse that is now out of the country, but they are not the only issues that can arise in an international divorce. Some divorces, such as those involving children or international property, are more complex.

Even though interacting with your spouse may be the last thing you want to do, talking things out is the best way to keep the financial, emotional, and time cost of the divorce down. The more the two of you can agree on, the quicker and easier it will be to get divorced.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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