Although it’s possible to divorce a missing spouse, technology and the Internet might make it possible to avoid resorting to this procedure. Generally, courts will not give you the go-ahead to divorce without your spouse's participation until you’ve exhausted every effort to locate him. In the process, you might get lucky and track him down. This is usually preferable, because in many states, limitations exist to such divorces.
Motion for Alternate Service
Laws in every state require that you notify your spouse that you’re divorcing him. He has the right to contest the action and to defend his interests. This is “service” of your divorce petition, and normally, you could arrange to have someone hand-deliver your papers to him, such as the county sheriff or a private process server. If you don’t know where he is, this option isn’t available to you. You must therefore ask the court to approve an alternate means of service instead. In most states, this involves posting a legal notice in the newspaper. However, you can’t just go to your local newspaper and take out a legal ad to let your spouse know what you’re doing. You need permission from the court first. In most states, you accomplish this by filing a special motion, explaining that you can’t find your spouse and asking to use an alternate means of service.
The court won’t grant your motion unless you can prove you conducted a diligent search for your spouse. If you have access to the Internet, check the Social Security Death Index first. Make sure he’s still alive, so you’re not going through a lot of effort for nothing. Check social networking websites as well. He might be keeping in touch with friends through such sites. Several websites exist that will search public records for you, looking for some trace of your spouse, for a nominal fee. They'll give you a list of his last known addresses. Unless your spouse doesn’t want to be found, one of these methods might very well turn up some trace of him, then you'll know where to serve him with your divorce papers. Otherwise, print out the results of your searches and attach them to your motion, showing what you’ve done to find him. Some courts might require you to go further and contact old friends, relatives or employers to ascertain if they know where he is.
Notification by Newspaper
If the court approves your motion for alternate service, the judge will issue an order stating that you have the right to serve your spouse by publication. You can take this order to the newspaper and arrange to run your legal notice. The order should contain specific directions regarding how many times you have to publish your notice, but it's usually about once a week for several weeks. The staff at most newspapers have considerable experience with these sorts of legal advertisements, and they can assist you.
Divorce by Default
After your divorce notice has run the required number of times, the newspaper will give you an affidavit or statement, confirming this. Take your notice back to the courthouse and file it with the clerk. After you’ve done this, most states require that you wait a statutory period of time, during which your spouse can respond to the notice and file an answer to your divorce petition with the court. When this time period expires, and if your spouse does nothing, you can ask the court to grant your divorce by default. This usually involves a brief hearing before a judge so he can confirm the details of your case. He’ll grant you a divorce, but depending on the laws in your state, he may not be able to do much more than that. If you have children, he’ll grant you custody, because he can’t give custody to an absent parent. However, many jurisdictions prevent judges from awarding child support or dividing marital property if your spouse hasn’t participated in the divorce.
References & Resources
- Jeffrey B. Peltz: I Want a Divorce, But I Don’t Know Where My Spouse Is
- MyFamilyLaw.com: How Do I File For Divorce if My Spouse is Missing?
- YourFamily.com: Tips For Finding Missing People
- Law Firm Newswire: Orange County Divorce Proceedings Can Go On Even With a Missing Spouse
- DivorceInfo: When You Can’t Find Your Spouse