If you’ve lost track of your spouse and no longer know where he’s living, you can still get a divorce. The law requires that your spouse must receive notice that you've filed for divorce but most states allow you to do this by publication when you can't find him to personally serve him with your paperwork. You'll have to take additional legal steps, but his absence doesn't mean you have to remain married to him.
Most states require that you conduct an exhaustive search for your spouse before the court will allow you to serve him by publishing notice of the divorce in a newspaper. in some states, such as Nebraska, you must additionally ask the sheriff to try to serve your spouse at his last known address. This process of searching is “due diligence” or “diligent effort.” You’ll have to comb through Internet social networking websites and check with the post office, with voter registration and with the department of motor vehicles to try to find some trace of him. You might also be required to contact known family members and your spouse’s previous employers. Calling his last phone number and finding it disconnected is usually not sufficient. If you hire an attorney or private investigator, that person can make a diligent effort to find your spouse on your behalf; you don’t have to do it personally.
After you’ve done everything possible to find your spouse, you must present the results of your search to the court and ask for permission to serve him by publication. Depending on your state, this usually involves filing a motion with the court, along with a corresponding affidavit. An affidavit is a sworn statement that tells the judge everything you’ve done to locate your spouse. When you file your papers with the court, the judge will review your affidavit. If he approves your due diligence, he’ll issue an order for publication.
When you receive your order for publication, read it over for instructions. The exact rules for service by publication vary from state to state. In Nebraska, you must run the notice once a week for three weeks in the county where you filed for divorce. In New York, the newspaper must serve the area where your spouse last resided, and you have 30 days to publish your notice after you receive your order. Some jurisdictions might also require you to post a notice at the courthouse. Take your order and a copy of your divorce documents to the legal notice department at the appropriate newspaper and request publication. The newspaper's staff will be able to help you construct the notice based on the information contained in your divorce documents and the judge’s order for publication.
In most states, you must wait a minimum number of days after publishing your notice before you can proceed with your divorce. This allows your spouse time to respond and to contact the court, if he sees the notice. Most states, such as New York and Texas, require that you wait 30 days. However, you should notify the court immediately that you've run the notice. Most newspapers will give you an affidavit, confirming that your notice has been published the required number of times. You must usually file this affidavit with the court. After your required waiting period has expired, and if your spouse doesn’t respond to your notice, you can ask the court to give you a divorce by default. However, the courts in some states can’t rule on monetary issues when you receive a divorce this way, such as child support or property division. Without your spouse’s participation, you might only be able to receive a divorce while other issues between you remain outstanding.
References & Resources
- Slater, Kennon & Pugh: Divorcing an Absent Spouse
- My Family Law: How Do I File for Divorce if my Spouse is Missing?
- Jeffrey B. Peltz: I Want a Divorce, But I Don’t Know Where My Spouse Is
- LegalMatch: Divorce From a Missing Spouse
- Nebraska Online Legal Self-Help Center: Alternate Service – Service by Publication