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Divorcing a deported spouse

You married your foreign-born spouse in good faith after the government initiated deportation hearings against him, but two weeks after the marriage, he was deported anyway. For a while you both remained in touch, and you even hired an attorney to help him come back to the U.S. Then he disappeared. No phone calls, no emails, nothing. Each time you called his family, they said he was not there.

It’s been a couple of years now, and you want to get on with your life. The problem is that you are still legally married. What you want and need is a divorce.

Although the process of obtaining a divorce from your foreign-born spouse is the same as if they had remained in the U.S., there are some extra hurdles you need to be aware of when they live in another country.

Who has jurisdiction?

The predominant concern is whether or not the country where your spouse resides will enforce a New York divorce order. Many will do so as long as they are made aware of it. For example, Mexico will enforce a decree received in the U.S. if a request is filed with the Mexican court closest to where your spouse lives, he or she was properly served, and enforcement is not contrary to public policy.

Unfortunately, other countries that don’t have a treaty with the U.S. or are otherwise at odds with this country are likely to refuse to get involved, forcing you to file for divorce with a local court over there.

How will you serve your spouse?

Serving your spouse is the other major challenge when you’re dealing with an international divorce. Since most countries require you to notify a resident of upcoming court actions against them, you will have to serve them with the divorce petition under conditions that meet both U.S. and foreign requirements. If they reside in Croatia, for instance, then you can hire a local process server to deliver the documents to them.

What if you don’t know where they are?

If your spouse has gone off-radar and you can’t locate them, then New York will let you serve notice on them in other ways. State courts require you first to show that you made a good faith effort to search for your spouse, such as asking their known friends and relatives. If they still cannot be found, you can apply for a “Divorce by Publication,” which allows you to publish the Summons with Notice or the Summons and Verified Complaint in a newspaper. The publication must take place once a week for three weeks, with the first one taking place within 30 days after you receive court approval. You then file an Affidavit of Service within 20 days after the third publication. If your spouse does not respond, then your divorce will be considered uncontested.

When divorcing a deported spouse, your best option is to work closely with a New York family law attorney who is familiar with international divorces and can help you take all the necessary steps for a legitimate action. Jayson Lutzky is a Bronx divorce and family court lawyer with over 35 years of legal experience. Mr. Lutzky offers free in-person initial consultations. You may reach his office at 718-329-9500 or by visiting www.MyNewYorkCityLawyer.com.

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