So you want a divorce. But what if you can’t find your spouse? While traditionally, once you file for divorce, your attorney must serve your spouse with a divorce action, that can’t really happen if your spouse can’t be located. So what do you do?
First off, you must make reasonable efforts to find your spouse.
Once you have filed the Petition for Dissolution of Marriage with the court, a disinterested person over the age of 18 may serve the Petition on your spouse. If your spouse can’t be located, your next option will be to file a motion with the court requesting to serve your spouse by publication. To support your motion to publish, you will be required to establish for the court that you used reasonable efforts to locate your spouse. Many courts will issue a delay prevention order if too much time has gone by and proof of service has not been filed with the court. This generally requires filing a report with the court stating the efforts that have been made to accomplish service.
Some of the things you can do to locate your spouse are:
- Document the last time you saw your spouse and where.
- Check your spouse’s last address in person.
- Send your divorce papers by certified mail to your spouse’s last known address. Also send the papers by regular mail. When they are proven to be undeliverable and returned to you, keep the envelopes and mail as documented proof.
- Contact any of your spouse’s relatives.
- Contact your spouse’s last know place of employment.
- Search local and state court and criminal records, jails, and the Federal Bureau of Prison’s website.
- Search local hospitals, food pantries, and homeless shelters.
- Search any number of Social Security Death Index websites to see if your spouse’s social security number is listed.
- Search the military database of servicemembers to see if your spouse is enlisted.
Strongly consider hiring a process serving company to assist in locating and serving your spouse.
While this list is not comprehensive of everything you can do, it’s a start. No matter what you do, you must be able to document your efforts and keep records of all attempts to locate your spouse.
Secondly, ask the court for an Order of Notice by Publication.
After you’ve done everything you can to locate and serve your spouse and you do not believe further efforts to attempt service will be successful, you can then file a motion with the court requesting permission to serve by publication. Serving the Summons and Petition by publication means that the court has allowed you to run a notice (which is a copy of the Summons) in a newspaper of general circulation in the county where you filed.. Every newspaper will be different in the costs of such a notice, and you are responsible for the payment. In general, you have to run the notice for 5 weeks in a row.. An affidavit from the newspaper attesting to the publication and a copy of the publicized notice must then be filed with the court.
If your spouse does not respond, you will want to set a default hearing with the court. At this hearing, you will only be able to obtain a Decree of Dissolution. Without personal service, the court does not have jurisdiction to address division of property, parental responsibilities, parenting time or support.
Have questions? If you are considering getting a divorce and your spouse is missing, contact Liberty Law for help. It is always better to consult with a legal professional before moving forward, and we will walk you through any concerns or questions you may have.