A divorce usually starts with the filing of a divorce complaint or petition for divorce. Once the complaint is filed by one spouse, the other spouse must be notified of the action. That notification is called “service of process,” or simply “service.”
Each state has its own rules regarding service, and most offer a number of options for serving the complaint. For example, service may be done in person by having a process server hand the other spouse a copy of the divorce complaint. You can also serve a complaint by certified mail or regular mail. Problems arise when one spouse cannot be located, which usually only happens when the parties have been separated for a long time and don’t have financial ties to each other or children together that require them to stay in touch.
In situations where a spouse is missing, state court rules usually provide an alternative service method after the spouse petitioning for divorce has exhausted all reasonable attempts to find the other spouse.
Step #1: Try to find the missing spouse
Before a judge will allow you to use alternative methods of notification, you must exhaust your options for finding the missing spouse — a process known legally as “due diligence” or “diligent effort.” Reasonable steps include:
- Contacting the spouse’s relatives, friends, former employers and former landlords
- Searching on Internet social networks
- Checking with government organizations like the post office, voter registration and department of motor vehicles
- Trying to contact them via last known email addresses and phone numbers
You can hire a lawyer or private investigator to complete the due diligence process for you, you don’t have to do it personally.
Step #2: Ask the court to allow service by publication
After you’ve completed step #1, present your findings to the court and ask for permission to serve your spouse by publication. You may be required to present a sworn statement, called an affidavit, showing the steps you’ve taken to locate your missing spouse. A divorce cannot move forward unless there is a satisfactory showing that all possible steps have been taken to find the spouse. If the judge approves your due diligence, he will issue an order for publication.
Step #3: Publish a service notice in local publications
Each state has slightly different rules for service by publication, and newspaper staff will usually help you write the notice based on the information in your divorce documents and judge’s order.
Some states require you to publish a notice once a week for a certain amount of time in the county where you’ve filed for divorce. Other states require you to choose a newspaper that covers the area where your spouse last lived. There may also be a set time — 30 days, for example — in which you must publish the notice after you receive your order for publication from the court.
You may be required to post an additional notice at the courthouse.
Divorce notice via Facebook?
There was a recent case in New York where a judge allowed a woman to serve her elusive husband on Facebook. The woman had tried other means to notify him of service, to no avail. She did not know her husband’s address but she was aware that he used Facebook to communicate. So, in an unprecedented move, the judge allowed the woman to use Facebook to serve him the notice and move the case forward.
Step #4: Wait, then move forward with divorce by default
Let the judge know as soon as you’ve published the notice by filing an affidavit with the court. Publications will usually give you an affidavit confirming that your notice was published the required number of times.
There is usually a minimum number of days you’re required to wait after publishing the notice before you can move forward with a divorce. The waiting period, 30 days in some states, is intended to allow the missing spouse time to see the notice and respond or contact the court.
After the necessary waiting period, you can ask the court for a divorce by default. Note that courts usually cannot decide on financial issues such as property division, alimony or child support without the cooperation of both spouses.
For the party who wants to move forward with a divorce in the face of a missing spouse, it is well advised to understand your specific state’s rules governing service of process and discuss your options with an experienced divorce lawyer.
It’s also in your best interest to work hard to locate the missing spouse by checking with friends and relatives, contacting former landlords, places of employment and any mutual friends or acquaintances who may be aware of where the party is living. With the Internet and social media, it’s a lot easier than it once was to locate someone even if they have moved out of the state or even out of the country. And, as was demonstrated in the recent New York case, judges might be starting to recognize the benefits of using technology in tracking down a missing party.