Getting divorced when you can’t locate your spouse can be difficult, but it’s achievable when you are aware the steps you are going to need to take. The question is, can I get a divorce without my spouse knowing?
At one time, the law had the requirement that both spouses agree to get divorced be prior to a court terminating a marriage. Nowadays, it’s realizable to file for divorce even when you are unable to locate your spouse. The thing is though that you can’t get a divorce without at least trying to formally notify your spouse concerning the proceedings.
In each state, one of the spouses is able to file for divorce without the other’s involvement or consent. So, even when you can’t locate your spouse, you are still able to file for divorce.
How to Get Divorced When You Are Unable to Locate or Have Your Spouse Served
No court can start processing a divorce petition until the filing spouse “serves” their spouse with divorce papers. But effectively serving your spouse without a present address can be challenging.
“Service of process” is an ornate way of describing the official delivery of papers in the manner according to law. After completing service of process, you present a “proof of service” form to the court. After the court receives the proof of service, they can start processing your case.
Filing Fault vs. No-Fault Divorce Papers
You can’t have your spouse served until you’ve devised a divorce “petition” (divorce papers). Subject to your location, your divorce petition could be for a no-fault divorce or fault divorce. In no-fault divorces, neither spouse accuses the other for the cause break-up; they simply agree that they no longer want to be married to each other or have irreconcilable differences that make it far-fetched to stay married.
A fault-based divorce is one in which one spouse claims marital transgression. In states that allow fault-based divorce, the most general “grounds” include cheating, abuse, and neglect or abandonment. A fault-based divorce is usually more time-consuming, costly, and combative than no-fault divorce. (But if the state you live in allows abandonment as a fault ground, you could be able to accelerate your divorce case—by getting the required separation period renounced—if you can establish you were abandoned by your spouse.)
In each state, one spouse is can file for divorce without the other’s involvement or consent. So, when you are unable to locate your spouse, the kind of divorce to pursue is your choice.
The most general way to serve process is to hire a process server or your local sheriff’s department (at a cost) to complete service on your spouse. (You are unable to service the papers yourself.) A lot of process servers and sheriff departments won’t agree to attempt service without a present address. If you are able to afford it, you could hire someone to track them down. But an PI work like that can get costly fast, without any guarantee of being successful.
If you have no knowledge of where a process server can locate your spouse, you most likely won’t to be able to use any of the conventional methods for completing service. But don’t lose hope. The courts have choices for how you can proceed with your divorce.
Alternative Ways of Your Spouse Being Served Divorce Papers
When you are unable to locate your spouse, you can request the court to use an alternative way of service, such as a publication in a newspaper. In a lot of courts, you are going to have to file a “motion” to request approval to use another way, but in many courts, you simply fill out a form and file it with the county clerk petitioning to serve by an optional method.
Make Determined Efforts to Find Your Spouse
Prior to a court granting a request to use an optional method of service, the judge is going to want you to demonstrate that you’ve made determined or reasonable actions to find your spouse.
Each court has their own explanation of what is considered an adequate effort prior to it allowing you to use optional service method. Typically, you are going to need to show proof that you’ve tried to serve your spouse at last known employer, last known home address, or any other address where it’s feasible your spouse might be located. Or you might need to demonstrate that you’ve made efforts to determine if your spouse is incarcerated or residing with members of their family.
If you can demonstrate you’ve attempted to serve your spouse at least 3 times prior to requesting alternative service, you have a better possibility of the judge considering your efforts adequate and awarding your motion.
Service by Newspaper Publication
The most general kind of alternate service is “service by publication.” When serving by publication, you put out a notice in a local newspaper. Make sure you verify from the county clerk the processes you need to follow—every court’s regulation about publication and notice varies and failing to adhere to them might result in the court requiring you to begin the service process from the start (therefore a longer time in finalizing your divorce). when your court has forms to request service by publication, the forms should have instructions on what you are required to do.
Usually, you are going to need to place an ad in the local newspaper situated in the area closest to your spouse’s last known address, and you are going to need to pay to run the ad for a certain period of time (typically up to 3 weeks). The expense for publication is regulated by the paper. You are responsible for paying the expenses, but you might be able to get compensation for the expense from your spouse through the divorce later.
Despite the fact that its uncommon, some courts have enabled spouses to give notice through social media, such as Facebook. When you ask for an alternative service, the court is going to tell you the options available.
Service by Posting in a Courthouse
A less general way of alternate service is “service by posting.” Meaning you, the county clerk, or a sheriff is going to post a notice in the courthouse nearest to your spouse’s last known residence. Many courts have a form to fill out requesting service by posting. Some states, like California, enable you to use service by posting only when you file a fee release in your case due to you not being able afford for paying the filing fees or the publication fees.
What Happens Following You Serving Your Missing Spouse
Following you completing the steps required to serve your spouse (whether by conventional service, by publication, or another way), your spouse has a certain length of time (typically up to 28 days) for responding. Typically, spouses respond to divorce petition by agreeing to or disagreeing with the declarations in the petition or complaint. But what happens when your spouse doesn’t ever respond?
When Your Spouse Doesn’t Respond: Default Divorce
When you’ve adhered to your court’s procedures for serving the paper, if your spouse doesn’t respond, you can petition for a “default” divorce.
What is a default divorce? Default divorces are when you’re petitioning the court to process your case without involving your spouse. Frequently, the court is going to award the divorce and enter the orders requested in the divorce petition if they are fair and reasonable (the court might require you to present additional information backing your petition prior to issuing a final divorce decree). If there are minor children involved, the court is going to go over your state’s best interest standards and the situation surrounding your case prior to deciding custody and/or child support.
Are default divorces final? After the court awards your petition for a default divorce, you are going to get a copy of the final divorce decree. Default divorces are as official and legally binding as any other kind of divorce. Remember, the court could necessitate you to prepare paperwork known as a “Notice of Entry of Judgment” and mail it to your ex-spouse’s last assumed address or publish the same way you would publish notice of the preliminary divorce filing.
A lot of states, on the other hand, enables the defaulting spouse a particular amount of time to petition the court to overturn the default judgment. When the defaulting spouse gives good reasoning for not replying to the divorce papers before time runs out, the default divorce might be overturned, and the divorce is going to have to begin all over again.
What if your spouse declines to sign them? If you are able to locate and serve your spouse, but your spouse declines to sign or reply, what happens after that is subject to your state’s laws. A lot of states allow you to ask for a default divorce. Other states could allow the divorce to advance and schedule you a court date. If your spouse doesn’t attend, the judge is going to likely consider your divorce petition as if it is uncontested, meaning the court is going to accept all the terms you asked for in your divorce petition.
When Your Spouse Responds: Other Alternatives
When your spouse responds to your divorce petition following you serving notice by publication or other means, you are not going to be able to get a default divorce. Subject to your state’s laws, you could have to re-file your petition, or your case could become a conventional divorce. But you still could be able to bypass taking your case to court.
Determine if Uncontested Divorce Is an Option
Now that you’ve found your spouse, you could be able to make the process fast and pain free by filing for uncontested divorce. You are going to be able to file for an uncontested divorce when you and your spouse agree on every matter in your divorce, like division of property, spousal maintenance, and child support and/or custody. Uncontested divorces are typically the quickest and least costly way to get a divorce, since you can usually DIY your divorce or work with an internet divorce service for help (in which is less costly than hiring a lawyer).
Think About Divorce Mediation
If you both disagree on some matters but think that you could be able to resolve them with a little help, you might want to think about divorce mediation. Through divorce mediation, you both meet with an unbiased, 3rd party that will help you negotiate and agree on the matters concerning your divorce. Mediation is typically quicker and less costly than hashing out your differences in a courtroom. And, when you find out your spouse is living out of state or in a different state, you can carry out your mediation through the internet so neither of you must travel.
Know When to Hire an Attorney
For every other situation—particularly if you have a convoluted financial situation or it seems like your spouse wants to fight over child custody and/or support—think about contacting an experienced family law attorney for help. If you are unable to afford one, you might qualify for free or low-cost legal help from your area legal aid association or try getting a hold your local bar association to find out if there are attorneys in your area that could represent you at no cost (pro bono) or for a reduced cost.
Melissa Heinig, A. (2021, July 26). How to get a divorce without your spouse. www.divorcenet.com. Retrieved January 20, 2022, from https://www.divorcenet.com/resources/how-to-get-a-divorce-without-your-spouse.html
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