The dissolution of marriage is undoubtedly hard on both partners. However, its becomes exponentially more difficult and harder to finalize a divorce when one spouse is not compliant or even remotely amicable.
Many spouses choose to relocate after their divorce, usually for the chance of a fresh start in a new place. Wiping the slate clean is a tried and true method to move on with the new chapter in one’s life. But, what happens if a spouse is unable to move on because their divorce cannot be finalized due to a missing spouse?
On occasion, a spouse will separate and relocate without telling or notifying the other spouse. Most court systems have a provision for granting a divorce when you cannot locate your spouse. The courts usually have a procedure of publishing or mailing (to the last known address) the notice of the divorce. Although the court may decline to enter substantive orders (such as alimony or child support) without the presence of the other party, the divorce itself will almost certainly be granted. As long as there is an attempt to contact the spouse in question, divorces can still be finalized, sans the missing spouse.
Our legal system requires “serving notice on,” or informing your spouse that you want a divorce in all legal senses of those words. But if you don’t know your spouse’s whereabouts, there is something called Divorce by Publication.
According to the law, courts require, first, that a “diligent effort” be made to “search” for your spouse in the jurisdiction (county/state) where the spouse was last known to live. This can be done by contacting various agencies, such as the post office, the board of elections, the different branches of the military, or DMV, and asking whether they know the person’s current or last place of residence. Searches also include telephone directories and the Internet.
Now, if the search fails to locate anyone, the spouse seeking the divorce can apply to the court for an Order of Publication. The application lists all the search efforts so that the court sees that a “diligent effort” was made to find the missing spouse, in essence, showing all resources were exhausted. When an Order of Publication is signed by a judge, a legal notice is then needed to be published in a newspaper stating the spouse is bringing a divorce action against the missing spouse. This is the legal equivalent of “serving notice” with a “summons” in cases of a missing spouse.
In order to carry out a legally extensive and diligent effort, the legal notice or legal “advertisement” must be placed in the newspaper within 30 days after the judge signs the order. The order specifies which newspaper to publish the notice (usually one where the missing spouse was last known to have lived), and the three times the notice was published (which is usually one notice per week for three weeks).
If after 30 days from the date when the third, and last advertisement, was published, the missing spouse does not respond, then the spouse can file for the divorce “by default.” This means that, despite a thorough search effort and sufficient legal notice in a newspaper, the missing spouse failed to respond to your intention to seek a divorce. He or she is considered to have “defaulted,” and your divorce will then be granted.