Getting divorced can be a straightforward process when both sides agree on most details. But if they don’t, it often becomes complex and contentious. Divorce is problematic enough to begin with, but when you can’t find your spouse, it’s something else entirely.
Related Reading: How To Petition For The Dissolution Of Marriage
Divorce if you can’t find your spouse
Whatever the reason for their absence, whether they moved out of state, left the country, or just dropped off the radar, the question of how to proceed with a divorce when your spouse is MIA remains.
While this makes it more complicated, there is good news. You can still divorce your spouse even if you can’t find them, though it takes a few extra steps.
Related Reading: 7 Simple Steps To Divorce
File For Divorce
First things first, you need to get the ball rolling by filing for divorce. This is the initial step no matter the situation and after that things get tricky. To begin, you need to complete an FL-100 form.
- FL-100 – Also known as the petition, submitting this form begins the divorce or legal separation process. As the filing party, you list all the pertinent information related to your marriage, including dates, children, and property.
Related Reading: Things To do Before Divorce
Do Your Due Diligence
If you can’t find your spouse, the next step, serving divorce papers, obviously becomes an issue.
In order to finish your divorce, you must do your due diligence to try to find them. And you need to show your work. So make sure to document everything you do to try and find your spouse.
Good starting places are the last known residence and last known employer. Family members also often offer insight.
Online tools are an invaluable resource. Below are just a few ideas to get you started:
- Google search.
- Phone listings in the last area of residence.
- Criminal databases, public court records, or even the Federal Bureau of Prisons.
- Social Security Death Index.
- Military records.
- The DMV.
Working with a divorce lawyer can also come in handy. Experienced professionals likely have their own set of tools and trade secrets to aid your search.
Enlisting the services of a private investigator is also an option. This sounds expensive, but oftentimes they have reasonable rates for this type of case. A small investment now may benefit you down the road.
This all sounds like a lot of work, and it certainly can be. Still, you must demonstrate to the court that you put in a good-faith effort to find your spouse. You can’t simply fire off a few emails and call it a day.
Related Reading: What’s in a Divorce Decree
Service By Publication
Once you do your due diligence in attempting to find your spouse, document the actions you take, and compile evidence to prove your search was exhaustive, it’s time to move on.
For the next step, go back to court and file a “Motion to Serve by Publication.” This is the last task you need to complete to show that you put in a significant amount of effort.
You need to publish a public notice in an acceptable source. Most often this is a newspaper or other credible news outlet in the area where your spouse most likely lives.
As an alternative, you can also serve by posting. This is when the summons is displayed in an area of the courthouse visible to the public. The idea is to make it as accessible to your spouse as possible.
In order to serve by posting or publication, the court needs to approve the measure. This is why it’s vital to record your actions and prove you can’t find your spouse through other means. For the vast majority of divorce cases, this strategy doesn’t yield significant results, but the law requires this step.
Related Reading: Should I Mediate My Divorce?
Motion For Default
If your spouse still doesn’t respond, next you file a “Motion for Default.”
This says you did everything you could to serve your spouse with no results. By failing to respond in time, they’re in default. This motion formally requests a judgment in your favor.
In most cases, this means you, the filing party, get everything asked for in the initial petition for divorce. If you can’t find your spouse, and without their direct participation, the court can now divide any marital property, rule on child custody matters, and offer other declarations.
Related Reading: How Are Assets Split In A Divorce In California?