Tweet

Here’s the situation:  your spouse has been deported , you don’t  know where your spouse resides in the country he/she has been deported to, and you finally want to move on to a new relationship.

When you want a divorce, but your spouse has been deported and you don’t know where he or she is, you may wonder whether you can get a divorce.  After all, you think, if I don’t know where my spouse is, how can my spouse be served with divorce papers?  And if I can’t serve the divorce papers, won’t the court refuse to grant me a divorce?  Not to worry.

While the general rules that apply to most divorce cases will differ for you, and while ou will certainly need to take additional/alternative steps.  In this article, I will focus mainly on the actions you must take to obtain a divorce, without needing to actually find your spouse (because he/she is off the grid).

If you Know Where Your Spouse Is

If you know where your spouse resides in the country he has been deported to, the process if fairly simple.  The process for service of the divorce pleadings is governed by Rule 4, an d particularly Rule 4(d)(3) of the Utah Rules of Civil Procedure, which can be found by clicking here. 

Unaware of Where Your Spouse Is?

I’m not here to tell you how to find your deported spouse, but I am here to tell you what to do when you want to divorce your spouse and move on with your life.

You may ask: “why does it matter whether I know where my spouse is?”  The Utah Rules of Civil Procedure, Rule 5, requires that all pleadings be served to the opposing party and/or his/her attorney.  The purpose of Rule 5 is to ensure that no party has a default judgment entered against him without knowledge that he has even become a party to a lawsuit in the first place.

The pertinent portions of the Utah Rules of Civil Procedure are included as follows:

Rule 4. Process.

(d)(4) Other service.

(d)(4)(A) Where the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, where service upon all of the individual parties is impracticable under the circumstances, or where there exists good cause to believe that the person to be served is avoiding service of process, the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication or by some other means. The supporting affidavit shall set forth the efforts made to identify, locate or serve the party to be served, or the circumstances which make it impracticable to serve all of the individual parties.

(d)(4)(B) If the motion is granted, the court shall order service of process by publication or by other means, provided that the means of notice employed shall be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action to the extent reasonably possible or practicable. The court’s order shall also specify the content of the process to be served and the event or events as of which service shall be deemed complete. Unless service is by publication, a copy of the court’s order shall be served upon the defendant with the process specified by the court.

(d)(4)(C) In any proceeding where summons is required to be published, the court shall, upon the request of the party applying for publication, designate the newspaper in which publication shall be made. The newspaper selected shall be a newspaper of general circulation in the county where such publication is required to be made and shall be published in the English language.

(e) Proof of Service.

(e)(1) If service is not waived, the person effecting service shall file proof with the court. The proof of service must state the date, place, and manner of service. Proof of service made pursuant to paragraph (d)(2) shall include a receipt signed by the defendant or defendant’s agent authorized by appointment or by law to receive service of process. If service is made by a person other than by an attorney, the sheriff or constable, or by the deputy of either, by a United States Marshal or by the marshal’s deputy, the proof of service shall be made by affidavit.

(e)(2) Proof of service in a foreign country shall be made as prescribed in these rules for service within this state, or by the law of the foreign country, or by order of the court. When service is made pursuant to paragraph (d)(3)(C), proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.

Rule 5. Service and filing of pleadings and other papers.

(a) Service: When required.

(a)(1) Except as otherwise provided in these rules or as otherwise directed by the court, every judgment, every order required by its terms to be served, every pleading subsequent to the original complaint, every paper relating to discovery, every written motion other than one heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties.

****

(b) Service: How made.

(b)(1) If a party is represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. If an attorney has filed a Notice of Limited Appearance under Rule 75 and the papers being served relate to a matter within the scope of the Notice, service shall be made upon the attorney and the party.

***

(b)(1)(A)(iv) by mailing it to the person’s last known address;

(b)(1)(A)(v) by handing it to the person;

(b)(1)(A)(vi) by leaving it at the person’s office with a person in charge or leaving it in a receptacle intended for receiving deliveries or in a conspicuous place; or

(b)(1)(A)(vii) by leaving it at the person’s dwelling house or usual place of abode with a person of suitable age and discretion then residing therein.

***

(b)(2) Unless otherwise directed by the court:

(b)(2)(A) an order signed by the court and required by its terms to be served or a judgment signed by the court shall be served by the party preparing it;

(b)(2)(B) every other pleading or paper required by this rule to be served shall be served by the party preparing it; and

(b)(2)(C) an order or judgment prepared by the court shall be served by the court.

***

So, as you can see from what you’ve just read, when you petition for a divorce you will need to serve your spouse or his attorney—in one form or another that is approved in advance by the court—with the pleadings, unless otherwise directed by the court.

If you do not know where your spouse is currently (and I would guess you don’t want to travel to a foreign country in search of your spouse) you can serve your spouse by alternative means.  But before you do so, you must make duly diligent certain efforts to find out where your spouse is.  The court requires due diligence of you in your efforts to locate your spouse before it will permit service by alternative means.

The court has the power to determine what kind of service is sufficient to satisfy the notice requirements of the Utah Rules of Civil Procedure, Rule 5.

Search ICE for Information.

You can check for your spouse on U.S. Immigration and Customs Enforcement (aka “ICE”), which has an Online Detainee Locator System.  Simply enter your spouse’s name, birth date, and country of birth, and the records ICE has on your husband will appear (if your husband was not released from their custody more than sixty (60) days before your request).  Even if he was arrested more than sixty days before your request, ICE may have detained him for a significant period of time before releasing him from custody (“releasing him from custody” either means he has been deported or being allowed to remain in the country).

Search for Your Spouse Online

Take a few minutes and search for your spouse in the online yellow pages, on Google, Facebook, and on news sites about the country to which he was deported.  If you have friends, or know his friends, in the country your spouse has been deported to, give them a call and see if they can find your spouse.  The court requires due diligence of you in your efforts to locate your spouse.  Track your efforts carefully.

Obtain Permission from the Court for Alternative Service

In Utah, if a party cannot locate the other party, that party may receive permission to serve a party by “alternative service.”  Before actually serving your spouse by alternative means, you will want to submit a motion for permission to serve by alternative means.

In this motion, you articulate the actions you have taken to locate your spouse before filing for permission to serve by alternative means.  You will need to be specific and detailed in describing your efforts.  Give the court no reason to believe you did not do everything within your power to contact your spouse and serve him!  You will then set a hearing before the court on this motion.

The court will either sign an order granting you permission to serve your spouse through publication of a legal notice in the newspaper, by mail or commercial courier service or some other means (courts now sometimes authorize a party to be served by receiving notice through e-mail or Facebook, for example).

Document your actions as you comply with the court order.  I cannot tell you exactly how this will play out, but I can assure you that the most important thing for you to do is provide evidence to the court that, should it grant you a divorce, it will not set aside your divorce later if the spouse suddenly appears and proves you knew or could have know where he was all the while.

 

Tweet