Divorce to an Immigrant That Has Been Deported
By Cindy Hill
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Deportation of an immigrant spouse disrupts the marital relationship. Unless the remaining spouse leaves the country to join the deported spouse, she has few options: She can wait for years to determine if the deported spouse might be allowed to return to the United States, or file for divorce. Divorcing an immigrant who has been deported is likely to require special steps to establish court jurisdiction and to create a legally effective notice of the divorce filing.
Deportation and Return
Deportation is the formal removal of a foreign national from the country. Foreign nationals can be deported for violating American immigration laws. Although many immigrants married to U.S. citizens may qualify for permanent legal residency or citizenship after two years of marriage, they may still be deported prior to the time that citizenship is granted. Deported aliens may not be eligible to apply for a visa to return to the United States until three years, five years, or 20 years after their deportation, depending on the reason for the deportation and whether they had been deported on another previous occasion.
At least one spouse must reside in the state where divorce is filed in order for the divorce court to have jurisdiction over the case. The deported spouse will need to check with the local court authorities in the country to which he has been deported to determine the legal effect of an American marriage or divorce in that country. Every state allows no-fault divorce if both spouses agree to the divorce and an established period of time has passed in which the spouses live apart. If the deported spouse cannot be reached to obtain agreement or does not agree to the divorce, the remaining spouse can file for divorce on grounds of abandonment or irreconcilable differences.
Family law courts in the United States can grant a divorce that terminates the marriage when only one person is present in the divorce proceedings. However, if the deported spouse does not receive actual notice of the divorce proceedings, he can later challenge any divorce terms of spousal support, child support or property division. Any orders that the divorce court may issue with regard to spousal or child support will be difficult to enforce in a foreign country. Settlement of jointly held marital assets, such as real estate, may require additional legal proceedings to obtain title that meets standards of conveyance in your jurisdiction.
Serving the deported defendant spouse with notice that a divorce action has been filed against him can be complex if he cannot be located or is residing in a location where service of process with a return of a type recognized by American courts cannot easily be obtained. Most divorce courts allow notice of divorce proceedings to be made by publication after proof that the other spouse cannot be located. The extent of effort required to prove that the other spouse cannot be found varies from state to state. Requirements of sending return-receipt letters or attempting to telephone relatives of a deported spouse may be expensive, time-consuming, and possibly fruitless for the remaining spouse. Consult with the court clerk in your local family court or with a qualified divorce attorney to determine if your court might permit alternative notice procedures in the case of a deported spouse.
A freelance writer since 1978 and attorney since 1981, Cindy Hill has won awards for articles on organic agriculture and wild foods, and has published widely in the areas of law, public policy, local foods and gardening. She holds a B.A. in political science from State University of New York and a Master of Environmental Law and a J.D. from Vermont Law School.