A Checklist For Moving In With Your Partner
Divorce by Publication: The Case of the Missing Spouse
Strange as it may seem, but sometimes one needs to divorce a… missing spouse. Lately, we discussed the topic of uncontested divorce. In this post, we’ll discuss the issues that arise when one spouse’s whereabouts are unknown and often require special procedures and considerations to ensure a fair and just resolution for all parties involved.
In reality, the situation is not so uncommon, and there can be various reasons for that. For example, a couple could have decided the marriage had failed, started living separately, and lost track of each other in the course of the years. Now, one of them wants to marry someone else and cannot dissolve the previous marriage since the location of the lawful spouse is unknown. Or one of the spouses may refuse to sign the papers, ignore all the notifications, and disappear on purpose to complicate the process. This usually happens if they are mad at their partner and act this way to spite them or spoil their plans to marry someone else.
So, does it mean that you are stuck in a marriage with a person whose whereabouts you do not even know till the end of your life? Luckily, there are legal procedures to undertake in such cases, and you can always use a service by publication.
What Is Divorce by Publication?
The US legal system requires anyone named in a court case to be informed about it and participate in the process, which presupposes appearing in the court and responding to the proceedings. Divorce cases are not an exception. When one of the spouses files for divorce, the partner has the right to know about it and to agree or disagree with all their statements, requests, and claims for reasons, property, division, child custody, alimony, etc. For this, the other party must be served with a copy of the papers and accept them in hand.
However, if the other party’s location is unknown, it is impossible to hand them the papers. When the most common legal methods do not work, specific rules come into play. If the spouse does not show up after all the efforts to find them fail, everything ends up in a so-called “default divorce.” However, it is often referred to as online divorce by publication due to the additional step involved, which is publishing a notice about the divorce proceeding in a newspaper.
In connection with this topic, we bring to your attention the following statistics:
Requesting Permission for Divorce by Publication
Courts in different states, and even in different counties, may have some particular rules for requesting permission for service by publication. In some cases, filling out a special form for the clerk is enough, while some courts may require filing a formal legal request. This issue must be clarified with the local legal clerks. When the request is made, the judge will make a decision on the basis of the provided information, including the description of your steps in searching for the disappeared spouse.
Yes, before the court permits you to publish a notice, you must prove your “diligent search efforts” and their failure. The judge must see that you have made everything possible to locate your spouse and serve the divorce papers personally in their hands. Sufficient evidence will grant you permission to go ahead with a divorce notice by publication.
Looking for the Missing Spouse
There are no specified requirements as to the steps you must take when searching for the disappeared spouse. Everything depends on the situation and your resolve to finalize the process ASAP. To make sure that the court will find your efforts sufficient, consider the following steps:
- Contact your spouse’s friends and relatives.
- Contact your spouse’s last known employers and landlord.
- Contact any unions, licensing agencies, professional associations, groups, clubs, or communities your spouse could belong to or be connected with.
- Send the papers by mail to the last address you know, with the return receipt and return service requested note, so that the post office can send you any forwarding address they may have.
- Search telephone directories, the internet, and social media platforms.
- Check the post office, the voter registration office, and tax records in the town known as the last place your spouse resided in.
- Check local hospitals, homeless shelters, and other social services.
- Search the Department of Motor Vehicles database, US Military records, and the Social Security Death Index.
- Check federal, state, and local criminal court records
- Search jails, correctional treatment facilities, and the Federal Bureau of Prisons.
- Hire a private investigator (if you can afford that).
Make accurate notes of all the steps and their results to explain to the court why your spouse cannot be found and that you have no other information to continue the search.
Publishing a Notice
If your efforts are accepted by the court as reasonable and sufficient, you will be granted permission for an alternate method, which is serving a divorce notice by publication. For this, you need to publish a notice about the divorce proceeding with all the accompanying necessary details in a newspaper closest to your spouse’s last supposed location, where they are most probably to see it. The notice should run for at least four weeks for a better result.
If there is still no answer after this period, you may file a request for a default divorce. And of course, you will need to provide proof that the notice was served by publication (or any other legal method) and that no response was received. A final divorce hearing may be requested if the state does not support default divorces.
Watch this video to learn more:
Finalizing the Divorce
Sometimes, the judge reviews all the papers and signs a default divorce judgment. If you meet all the requirements, you get everything you requested in the initial complaint or petition. Some states are more stringent in this respect, however. You may be obliged to attend a hearing and justify all your requests.
Nevertheless, you must be aware that divorce by publication does not always end here. Some states allow a certain period for the spouse who did not respond to the initial petition to show up and to ask for setting aside or even overturning the judgment on default divorce. The court may satisfy such a request if the person had good and proven reasons for not responding, and you will need to file a new petition or complaint to start the process anew.
