Though it can be fairly straightforward on occasion, divorce is rarely easy. There are intricacies, conflicts, and all manner of issues to contend with as you go through the process. It’s difficult enough already, but what happens if you can’t locate your spouse? Divorcing someone you can’t find is a tricky proposition indeed.
Divorce begins when one spouse files the paperwork with the appropriate county. Traditionally, the next step is to serve the other party with the petition for divorce and a summons. In the vast majority of cases, this is a relatively simple feat, though you can see how it may become complicated if that person is nowhere to be found.
If this happens to you, it presents certain roadblocks and the questions arise. What does this mean for your case and how do you move forward? The good news is that you can still divorce someone if you don’t know where they are –it’s just a bit more complex than usual.
Start the Divorce Process
As in most cases, the first thing you need to do when filing for divorce is actually file for divorce. Fill out the forms and initiate the process. It’s the next step where problems can come in if you have a spouse you can’t track down.
The following stage is usually serving your spouse with the divorce papers. Most of the time, this is accomplished by enlisting the services of a process server or some other third party, but as you may have deduced, that’s probably not going to work in this case.
Do Your Due Diligence
If you don’t know where your spouse is, finding him/her may be next to impossible. Still, you have to do your due diligence and put in a good faith effort to track them down. There are obvious places where you may want to begin your search.
The last known residence or previous place of work are good first steps. If you are still in contact with members of his/her family or at least have their information, they may be able to shed some light on your spouse’s whereabouts. Google can be an invaluable resource in your search, as well as other online tools, like phone listings in the area where you know he/she last lived. It may even help to check criminal databases, court records, and the Federal Bureau of Prisons website. There’s also the DMV, the Social Security Death Index, and military records, among other options.
If you’re working with a lawyer, perhaps they have some tricks, tips, or trade secrets they can employ to track down your spouse. You may even need to turn to a private investigator to do some digging.
Whatever you do, wherever you look, and whichever tools you employ, make sure to document the process as you go. You may need this evidence to show the court that you put in the legwork. If you suspect this may be an issue ahead of time — for instance, if it’s been some years since you heard a peep from your spouse — you may want to start looking before you file the papers, just to speed things up.
Motion to Serve by Publication
When you’ve done your digging, compiled sufficient evidence that your search was exhaustive, and still haven’t been able to locate your spouse, it’s time to move on. Now you will be able to return to the court and file a “Motion to Serve by Publication,” which is essentially the one further step you need to take.
What this means is that a public notice of the case will need to be published in an acceptable source—usually a local newspaper or news outlet in the area where your spouse is most likely located. Alternately, you may serve by posting, which is where the summons is placed in a designated area in the courthouse where it can be viewed by the public and, in theory, possibly your spouse. It will need to remain there for a specific amount of time, which can vary from state to state.
Service by publication or posting does require the approval and go ahead of the court. To get this you will have to provide evidence of your efforts to track down your spouse and show that you put in a reasonable amount of effort. This why you want to be sure to document your quest.
Motion for Default
Even in the case of service by publication or posting, it is unlikely that your spouse will respond, but it’s what the law requires to show that you made an attempt. When the service is published, one of two things will happen. First, your spouse may show up and you can get on with the process of getting divorced. Second, if your future ex doesn’t appear, you can still move forward by filing a “Motion for Default.”
A Motion for Default basically says, “I served my spouse, but she didn’t respond.” By failing to take action, she is in default, and this request asks for a judgment in favor of the plaintiff. On a practical level, this usually means that the filing party will be granted everything requested in the initial divorce petition. Even without your spouse’s participation, the court can divide the marital estate, decide on custody, and render more decisions.
As in most things related to divorce, there is more to the story than this. Regulations can vary state to state, and each situation is going to have its own unique quirks and peculiarities. In reality, you will most likely be best served by retaining the services of an attorney with experience in this area, but it helps to understand what you may be in for if you want a divorce but your spouse is nowhere to be found.
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