I Want a Divorce, But I Can't Find My Spouse

If you've been separated from your spouse for an extended period of time, you might decide to take the next step and file for divorce. But what happens if you've lost track of your spouse and don't know where to serve the divorce papers?

Although being unable to locate your spouse can make the process more complicated, you can still get a divorce even if you can’t find your spouse.

Trying to Find Your Spouse

By law, you have to notify your spouse that you've filed for divorce. If you can't find him or her, then the usual methods of notification won't work. For cases such as this, states therefore allow you to use alternate methods, usually called “service by publication” or “posting.”

First though, you have to show that you made a good faith effort to find your spouse.

You can try serving the summons at your spouse's last known residence or workplace. Most states let you do this in one of several ways:

• Deliver them yourself or have another, disinterested adult do it
• Pay the court to mail them
• Pay a private process server to deliver them

Even if your spouse is not there, someone at that location might know a current address.

But just this step is not enough. You'll need to try other sources of information to locate your spouse:

• Your spouse’s family or friends you may still be in contact with
• Phonebooks, both paper and online
• Court records
• Post office, for a forwarding address

Keep careful, detailed records of every place you try, the date and time, and the results you get. Include names of anyone you talk to.

You can start this search before you file for divorce, but don't start too early. The judge will want to see recent efforts and may make you redo anything that's happened too far in the past.

Motion for Divorce by Publication

If you still can't find your spouse it's time to ask the courts to allow you to publish a notice of your divorce filing in one or more local newspapers. This is called a Motion for Divorce by Publication.

The motion itself is pretty simple. Most states have a form you can fill out and to which you can attach the details of your attempts to find your spouse. This is then filed with the court.

If Your Motion is Denied

If this happens, try to find out why and then correct the problem. It may be you didn't fill out the paperwork correctly, or the judge may feel you didn't do enough to find your spouse. If so, try to find out what else you need to do so you can resolve the issue and refile.

When Your Motion is Granted

Once your motion is granted, you will receive permission to publish your notice. The judge may include directions for what you need to include. If not, check with the court. Some states have specific requirements, such as including the date of your filing and the court where you filed.

Some states also specify which paper(s) your notice must appear in. These will likely be local newspapers, although “local” usually means near your spouse's last known address, not yours.

Your notice will usually need to appear weekly for two or more weeks. Your spouse will then have a certain amount of time to respond, often 30-45 days.

If your spouse doesn't respond, the judge enters a judgment by default against him or her and your divorce can be finalized. In the event this happens, you are likely to get whatever you asked for in your divorce petition.

Costs

Costs can vary widely depending on your state and the steps you need to take to find your spouse. There are a variety of fees you may need to pay:

• Filing fee for filing your divorce
• Process service fee to the court or a private process server, if you use one of these methods
• Filing fee for your Motion for Divorce by Publication
• Fees for each newspaper to publish your notice

Many courts will grant waivers for certain fees if you are having financial troubles, but you will need to show proof you can't pay. It's a good idea to have an attorney help you with this process. Although the process is not hard, it is complicated, and you want to be sure you follow your state's laws exactly. If you do something wrong, or skip a step, you may have to go back and start over. There may also be special rules if you have children. These obstacles shouldn't be a deterrent if you wish to get divorced and can’t locate your spouse, but they are added steps that you’ll need to keep in mind throughout the process.