In general, you can legally get divorced even if you do not know your spouse’s location. However, there is a legal issue you must overcome first – each state will require you to formally serve your spouse with a copy of the divorce petition before a divorce can be finalized.
So, how do you serve your spouse with a copy of the divorce petition if you don’t know where your spouse lives?
The answer is service by publication. If, after a reasonable search, you cannot locate your spouse to serve them the divorce papers (this also applies even if they’ve been deported), you can request permission from the judge for an order to allow service by publication.
It is legal in all 50 states to obtain a divorce by publication. Here is how it works.
Legal Requirements and Procedures For a Divorce When The Whereabouts of Your Spouse Are Unknown
Before you initiate the divorce process, it’s crucial to understand the legal requirements to obtain a divorce through publication. These requirements include the following:
- Reasonable Search: When you can’t locate your spouse, you will need to demonstrate to the court that you have made a diligent effort to locate them. This could involve hiring a private investigator, searching public records, and contacting friends and family.
- Publication: If you cannot locate your spouse, every state allows for service by publication. This involves publishing a notice of the divorce filing in a local newspaper. This notice serves as a way to inform your spouse about the divorce proceedings. The publication process requires court approval first.
Tim’s Legal Tip: You can only use service by publication if you cannot find your spouse after making reasonable efforts to find them. If you have not made a reasonable effort to find your spouse, the judge will not permit you to serve by publication.
Making a reasonable effort to find your spouse might include the following:
- Trying to serve the divorce papers to your spouse at their last known address.
- So long as it’s safe for you, trying to contact your spouse through phone, text, email, or social media.
- Asking your spouse’s family members, friends, or coworkers if they know how to find your spouse.
- Contacting your spouse’s most recent employer to see if they still work there.
- Searching for your spouse on the internet through social media and other databases such as the military database.
- Hiring a private investigator.
Before your divorce is finalized, the court will ask you what efforts you made to locate your spouse, so keep notes and write down everything you did to attempt to locate your spouse.
What is The Procedure to File a Divorce With an Absent Spouse?
The procedure to file a divorce with an absent spouse can vary based on your state’s laws, but here is a general outline of the steps you might follow:
Step 1: Filing the Petition
Begin by filing a divorce petition with the appropriate court in your jurisdiction. This is the legal document that initiates the divorce process.
Step 2: File an Affidavit of Diligent Search
If required by your jurisdiction, you will need to provide an affidavit detailing the efforts you have made to locate your spouse. This might include records of attempted communication, searches, and any other steps you’ve taken.
Step 3: Service by Publication
You’ll need to follow the specific procedures for service by publication in your jurisdiction. This will involve submitting the notice to a local newspaper for a specified duration and following any other legal requirements.
Step 4: Waiting Period
Many jurisdictions have a waiting period after service by publication before the divorce can be finalized. In most states, this waiting period will be between 30 and 45 days. This allows your spouse an opportunity to respond if they become aware of the proceedings.
Step 5: Obtain a Default Divorce Judgment
If your spouse doesn’t respond within the specified time frame, the court will grant a default judgment in your favor.
A default divorce refers to a situation when one spouse initiates divorce proceedings, but the other spouse does not actively participate or respond within the legally required time frame.
Step 6: Finalizing the Divorce
Once all necessary steps are completed, the court will issue a default divorce judgment. A default divorce judgment is a legally binding court decision.
Once a default divorce judgment is issued, it carries the weight of a final ruling, and the matter is generally concluded unless specific legal procedures are followed to challenge or overturn the judgment. This legally ends the marriage.
There is a Serious Downside to Getting Divorced With Service By Publication
In most states, when you only serve your spouse with notice of the divorce by publication, the court cannot handle every aspect of your case.
In general, a court can only order a dissolution of the divorce, give an order granting child custody, and order a division of property located within the state when there is service by publication.
In most situations, if your spouse is not located by the time that the judge grants the divorce, the judge will not be able to issue a judgment concerning the following:
- Spousal support, also known as “maintenance” or “alimony.”
- The amount of child support.
- Parenting time or visitation.
- Division of property located outside of the state where the divorce is filed.
This is a serious drawback to obtaining a divorce with notice by publication only. The good news is, if you locate your spouse later, you can have the divorce pleadings served on them personally and go back to court to have those issues decided.
FAQs
Q: What if my spouse reappears during the divorce process?
If your missing spouse reappears, the divorce proceedings will likely be affected. The judge will likely let your spouse file a response to the divorce petition (even if it is out of time) and allow the case to proceed toward a settlement or trial.
The court will likely do this because courts disfavor default judgment and prefer that cases be decided on the case’s underlying merits.
Q: How long does the process usually take?
The timeline varies by jurisdiction and circumstances, but it can take several months, even if your spouse does not respond to the notification published in the newspaper.
Q: Can I remarry if my spouse is missing?
Once the divorce is finalized, you’ll typically be free to remarry. However, consult a lawyer in your state for precise information.
Q: Can I proceed with the divorce if I have no evidence of my efforts to locate my spouse?
It’s essential to provide evidence of your attempts to locate your spouse.
Conclusion
Obtaining a divorce notification through publication is not the best way to end a marriage. Its scope is limited, primarily resulting in only a change in marital status from married to single.