Texas Divorce Due to Abandonment of Deported Illegal Aliens

By Timothy Mucciante

Although there is no specific reference to illegal aliens in the Texas Family Code, deportation of an illegal alien spouse may be considered abandonment and grounds for a divorce. A criminal conviction or the couple living apart are also grounds for divorce that may be supported by the deportation of the illegal alien. Any divorce petition must be served on the deported spouse, which has its own challenges; however, they may be overcome. Texas law also provides for no-fault divorce.

Spousal Abandonment

To prove abandonment, the husband or wife seeking divorce must prove the other spouse left intending abandonment and has been absent for more than one year. Abandonment intention may be implied from the illegal alien's actions -- putting himself in an illegal and precarious position, knowing he could never fully commit to staying with his spouse. A deported illegal alien will not be allowed back in the U.S. for at least three years, so the required one-year absence will be met.

Other Possible Divorce Grounds

As Texas is a no-fault divorce state, the only necessary divorce allegation is that that husband and wife can no longer live together due to marital discord or continuing disagreement or strife, and there is no chance they will get back together. A criminal conviction, which may be in conjunction with the deportation, is also a basis for divorce as is living apart for more than three years.

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Serving the Divorce Petition on the Deported Alien

Texas civil procedure allows that any nonresident who is located in the U.S. may be served either personally or by certified mail, return receipt requested. If the deportee is being held in an immigration holding facility pending deportation, the spouse may still be served personally at that facility or by certified mail. You may use the U.S. Immigration and Customs Enforcement Detainee Locator to find the deportation facility where the spouse is detained.

Serving the Illegal Alien Spouse Outside the U.S.

Once the illegal alien spouse has been deported to his country of residence, he must be served in that country, if possible. The petition may be served by personal service or registered mail, return receipt requested, or by any other method ordered by the district court that does not conflict with the laws of the spouse's home country. Any alternative process service method in a foreign country “must be reasonably calculated" to give notice so that he may answer the divorce petition.

Publication/Substituted Service

A deported illegal alien is absent from Texas and a nonresident, so Texas civil procedure permits notice by publication as substituted service. Substituted service is any manner of service, other than certified mail and personal service, ordered by the court to give fair notice of the divorce action to the absent spouse. Before authorizing notice by publication, the court must find that due diligence has been employed to find the illegal alien. A notice is then placed in an approved local newspaper as a means of informing the absent spouse of the divorce action.

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