Although no law can force you to stay married to your spouse, he can make it difficult to divorce him if you can’t find him. The court can’t claim jurisdiction over your spouse and grant you a divorce unless and until he knows you’ve filed. All states allow you to use use “alternate service” to notify him when this happens. One method is to post notice of your divorce in the newspaper.
Exhaust every effort to locate your spouse. If you can afford a private investigator, and you know your spouse’s Social Security number, a professional might be able to track him down. If not, reach out to his family members, his last known employer and people in the neighborhood where he last lived. The court will expect you to make a diligent effort to find him.
File a complaint for divorce with the court. Most states will allow you to issue subpoenas, called "subpoenas duces tecums," to search for information pertaining to your divorce after you've filed. Check with utility companies and tax collectors for records of possible accounts in the name of your spouse. This might help you locate him. If you still can't find him, you’ve now got active litigation with the court so you can request permission to use an alternate means of service.
File a motion with the court where you filed your complaint. A motion asks the court to allow you to serve your spouse by publication. In most states, you’ll also have to submit an affidavit or certification explaining and documenting all your attempts to find him. You can usually find forms for these documents on your state's website or elsewhere online.
Take a copy of the judge’s order to the legal notice department of your local newspaper, if the judge grants your motion. Ask the newspaper to run notice of your complaint for divorce for the number of days required in the order.
Contact the newspaper after your notice has run the required number of days. The publisher must sign an affidavit confirming that this has occurred. The newspaper may submit the affidavit to the court for you, or you might have to pick up a copy and submit it yourself. After the notice has run, you can proceed with your divorce.
Tips & Warnings
In some states, such as New Jersey, you must have a docket or case number to request permission from the court to serve your spouse by publication, so you must file your complaint for divorce first. Other states, such as New York, require you to submit the motion before you file a complaint for divorce. Check with legal aid or the court clerk to learn the procedure in your state.
The newspaper’s fee for running such a notice might be significant, as much as several hundred dollars. If you can’t afford this, ask the court clerk if your state has any procedure for waiving the fee.
Some states will only end your marriage if you can’t serve your spouse with a copy of your complaint personally. The courts won’t rule on other issues. For example, without true service of process, a judge usually can’t decide any financial issues, such as child support or property division.
References & Resources
- Nebraska Online Legal Self-Help Center: Alternate Service -- Service by Publication
- Clement Law: Service by Publication is a Relic of the Past; David Clement; November 2007
- Sixth Judicial Circuit of Florida: Pointers For Service by Publication or Posting in Divorce Actions (PDF)
- Rural Law Center of New York: Service by Publication in New York: Divorce Actions
- The Free Library: Subpoena Duces Tecum
- Jochen Sand/Photodisc/Getty Images