Thursday, February 10, 2011

WILL I BE ABLE TO GET A DIVORCE IN CALIFORNIA IF MY SPOUSE CANNOT RE-ENTER THE UNITED STATES?

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: Will I be able to get a divorce in California if my husband cannot re-enter the United States? My husband is not a U.S. citizen and cannot re-enter the United States, having overstayed a visa here previously. I am filing for divorce (in California), and I'm wondering what the legal implications are of his inability to appear in person, even if he wants to.

ANSWER: You are not prevented from divorcing your husband merely because he cannot legally re-enter the United States. However, he would need to be served with process for your divorce to proceed.

If your husband is agreeable to the divorce, he can be served by mail if he signs and returns a Notice and Acknowledgment of Receipt of service.

If he is not agreeable to the divorce, he will need to be served in a manner appropriate to the country in which he is served.

Many, but not all countries, are members of the Hague Convention on Service of Process. If he is in one of those countries, he will need to be served in compliance with the Hague Convention's procedures. If he isn't in one of those countries, research will need to be performed to determine the method required to give him Notice of the divorce proceedings, its cost, and the amount of time needed to complete service in accordance with that country's requirements. Service of process in foreign countries can be expensive and time-consuming.

If your husband is served, either by accepting service via Notice and Acknowledgment of Receipt, or otherwise, he could nevertheless retain counsel in California to represent his interests in a divorce, or he could default, in which case your divorce case could proceed in his absence.

If he retains counsel in California, he could "appear" at hearings via "Court Call" telephonic appearance.

Also, the fact that your husband cannot legally re-enter the U.S. doesn't preclude his illegal re-entry and personal participation in the divorce case.

This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.

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