Divorce from a Missing Spouse
In filing any lawsuit, including an action for divorce, the person being sued (the defendant) must be served with notice of the action. This is required by basic notions of fairness: if a person is being sued, they need and deserve an opportunity to defend themselves, and tell their side of the story. This requires advance notice of the action.
In the majority of cases, serving a defendant with notice is as simple as having a neutral third party hand it to them, or drop it off at their house. Occasionally, the defendant will be served by mail.
However, when the defendant (in the case of divorce, the other spouse) cannot be located after a reasonable search, most states provide for service by publication. When certain conditions have been met (repeated attempts at personal service, usually), a court will allow service to be published in a local newspaper, which is a last-ditch effort to put the defendant on notice that a divorce action is pending. In some states, the notice may also have to be posted outside the local courthouse. Whether or not the spouse receives actual notice is irrelevant at this point. As long as the correct procedure is followed, the action can go forward.
In the majority of states, once divorce by publication has been effected, one has to wait a certain period of time to give the other spouse an opportunity to respond.
Once this time period expires, going to court is largely a formality, since there is nobody to contest it. Still, it is required. The judge will usually grant the divorce as if it were uncontested, and decide matters like child custody. However, in most states, a court may not rule on matters like child support or division of property until the other spouse can be found.
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Last Modified: 04-11-2011 12:03 PM PDT
