Divorcing a Missing Spouse

Sometimes people have been separated for many years and have never gotten divorced.  They may figure that they have no children, they own no real property,  they have no marital property, or they never plan to remarry, so what’s the big deal? If you have been separated for many years, in the eyes of the court you might as well still be living together because your rights and responsibilities are still the same.  Anything that you have purchased is marital property, even if purchased in your own name.  Your spouse is still entitled to a portion of your pension benefits, and if you die without a will, your spouse will still be able to get a spouse’s share of the intestate estate. The only way to separate your finances from a spouse is through a legal separation, which is a court proceeding, or a divorce.

How Can I Divorce A Spouse That I Can’t Find?

Many people call me and tell me that they want an uncontested divorce.  I ask if they are in agreement with the other spouse on the disposition of all aspects of the case and they tell me that they don’t know where to find their spouse, but the spouse can’t contest it because their location is unknown.  This is not an uncontested divorce. People will ask if they can serve their spouse by publication.  Yes, you can, but you must first make an effort to personally serve your spouse.  With today’s access to the internet and social media, many times one can locate a spouse simply be doing a little internet sleuthing. In any divorce, the spouse seeking the divorce must make a good faith effort to personally serve the other spouse.  The court requires you to take certain steps to locate your spouse.  You can pay for a skip trace where you provide certain information and seek last known addresses for your spouse.  Once you find those addresses, you are required to make service attempts at each of those addresses through either the county sheriff’s department or through a special process server.  If you are unable to find a good address, the court would like to know what additional steps you made to locate your spouse.  For example, did you call any of your spouse’s friends or relatives seeking a location?Did you do a search of social media to see if you could find any information that would pin the spouse down to a specific geographic location? If you have exhausted all possible ways to locate your spouse, you can then seek a divorce by publication.  You will have to execute an affidavit noting your efforts to locate your spouse, which will  be filed with the court.  A divorce by publication required publications over a period of time before you can default your spouse.  Once the default date has come and gone, you can set the divorce for a default prove-up.  However, a default judgment of divorce where the other spouse has not been served only dissolves the marriage.  It does not divide property, or deal with issues of child support, visitation, or maintenance, so these issues are considered reserved.

Is This Something I Can Do On My Own?

You could try to represent yourself, but it is inadvisable.  I see pro see petitioners turned away from the court all of the time because they have failed to take the appropriate steps and file the required paperwork.  If you want a divorce and can’t find your spouse, give me a call and we’ll figure out what to do to get you divorced.

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