The typical form of starting a divorce action requires your attorney to serve the divorce action on your spouse at their last known address or in person if your spouse can be found elsewhere.
However, suppose you have exhausted all reasonable efforts to identify your spouse and are still unable to contact them. In that case, you may start divorcing a missing spouse by petitioning the court for an Order of Notice by Publication.
This means you must publish a notice of your plan to divorce your spouse in a newspaper near the spouse’s last known location. In most cases, you’ll air this “legal advertisement” for about three weeks, giving your spouse time to reply to the final notice.
What if they do not respond? By default, you and your attorney may move to finalize your divorce.
You can divorce your spouse even if you can’t find them or if they don’t participate in the divorce proceedings, as long as a Judge is satisfied that your spouse was given notice of the divorce proceedings. Publishing a notice may be your best alternative when your spouse is missing.
An affidavit of marshal service attesting to the publishing and a copy of the disseminated notice must be filed with the court in your state. In some jurisdictions, you must also file an Affidavit of Military Service stating that your spouse is not in the military.
Even if your spouse does not participate in the divorce procedure, the court can enter decisions governing the successful dissolution of the marital estate, such as property division, asset and debt division, and orders affecting children (custody, visitation, and child support), among other things.
How Can I Divorce My Spouse If I Cannot Serve Notice?
Serving a defendant with notice is usually as simple as having a neutral third party present it to them or drop it off at their house. The defendant is occasionally served by mail.
When the other spouse cannot be found despite a reasonable search, most states allow for service by publication in a missing spouse divorce case.
If you find your spouse, but they are out of state, you may wish to serve them via mail. Understand that you will need to go to court to obtain permission to mail the divorce documents. This is frequently more effort than it is worth.
Check to discover if you have any out-of-state personal service possibilities before going to court. A relative or acquaintance who lives nearby may be able to hand deliver the papers for you. If not, you may be able to engage a process server to deliver the documents on your behalf.
In most places, this usually costs around $100. If all other avenues have been tried, you can boldly stand in front of a judge and explain why service by mail is the best option.
Bring a Motion to Serve by Mail and an Order to Allow Service by Mail with you to court. Looking over the motion will give you a sense of the level of detail the court will require from you in order to approve the move.
Once the order has been accepted, you will need someone else to mail the documents on your behalf. That person must be over the age of 18 and not a party to the litigation. The forms must be mailed at the post office, and the envelopes must include a return mailing address.
How Does Service by Publication Work?
When certain circumstances are met (typically, many efforts at personal service), a court will allow the publication of a divorce notice in newspapers as a last-ditch effort to notify the defendant that a divorce action is ongoing. The notice may also be required to be placed outside the local courtroom in some states.
It makes no difference whether or not the husband receives actual notice at this time. The action can proceed as long as the proper procedure is followed.
How Long after Publication Notice Can I Proceed With a Divorce Proceeding?
In the majority of states, once a divorce by publishing has been finalized, the other spouse must be given an opportunity to respond.
Going to court after this time period has passed is basically a formality because there is no one to oppose it. Nonetheless, it is essential.
The court will normally award the divorce as if it were uncontested and will make decisions on issues such as child custody. However, in most states, a court may not rule on issues such as child support or property partition until the other spouse is located.
You should have served your spouse personally, by mail, or by publishing at this point, but that does not guarantee cooperation. They may be in denial and refuse to participate in the process. They could simply be frustrated and want more time. Regardless, individuals can be disagreeable in two ways: they can be absent or refuse to agree.
An absent spouse is one who fails to respond to the summons. While their lack of reaction is annoying, it actually simplifies the procedure. If a person fails to respond in writing within 20 days of receiving the summons, you can file a petition for default.
Because of the 90-day waiting period, it is best to get a default order on the 91st day after you have served your spouse. This will spare you from having to go to court. You can file your motion for default and final divorce orders concurrently.
It’s best to set up a hearing and notify your spouse. While notice is not always needed, failing to provide it may come back to haunt you. Due to the lack of warning, your spouse will have the opportunity to reverse the default divorce. Notice assures that the divorce decree will not be overturned later.
Bring the final divorce documentation and the Motion for Default and Order on Motion for Default to the hearing. The petition for default requests that the court dismiss the case without your spouse because they were given appropriate notice and did not reply. The judge should sign off on the divorce, allowing your requests, as long as you can demonstrate proof of appropriate service.
Spouses refusing to agree to divorce is quite common. After filing a notice of appearance in the lawsuit, a spouse will refuse to negotiate or make excessive demands. Fortunately, their consent is not required for the divorce to be finalized.
Whether or not your spouse agrees to the divorce, it will be settled or litigated. Trials in many counties are typically scheduled 11 months from the date of filing, so that is the most time you should expect the case to last. Furthermore, a high percentage of divorces are settled, so you’re likely to strike an agreement ahead of time.
Should I Consult an Attorney to Divorce a Missing Spouse?
When filing for divorce against a missing spouse, a divorce lawyer can ensure that the court’s procedures are performed correctly. An attorney can also assist you with state-specific divorce proceedings.
Divorce is a highly contentious issue, and you won’t want to go at it by yourself. Use LegalMatch to find the right divorce lawyer for you and your family’s needs today.