Relationships are complicated, and people often find themselves in situations they never anticipated. One of those is divorcing a spouse they’re no longer with — someone they are unable to locate to serve divorce papers.
How does the divorce process work when you’re unable to locate your spouse? Family law is state-specific and highly dependent on the facts of your case, so there’s no one universal answer for everybody (other than talk with a family law attorney). But here are some general guidelines to get you started.
There’s No Such Thing As a Secret Divorce
If you sue someone, you can’t simply file papers with the court and expect the judge to start making decisions against the other person. That’s a basic principle of procedural fairness called “due process.” Basically, if you file a complaint or petition with the court, you are also required to formally notify the other person involved, usually through service of papers.
And even though we typically don’t think of divorce proceedings as lawsuits, that’s what they are — except instead of a complaint, you’re filing a “petition for dissolution of marriage.” And instead of having a plaintiff and a defendant, the spouse who files is called the “petitioner,” and the other spouse is called the “respondent.”
But the notice requirement remains the same. The law requires that if one spouse files for divorce, they must serve the divorce papers on the other spouse — usually through a process server or by certified mail — and give the spouse adequate time to respond. Only then will the court move forward with the divorce proceedings. You can’t just ask the court to grant you a divorce decree without telling your spouse. In other words, there’s no such thing as a secret divorce.
Notice Doesn’t Mean You Agree
Just because a spouse accepts the divorce papers and files a response doesn’t mean that they agree to the divorce, or to any single issue to be decided. The divorce proceedings will determine issues including child custody, child support, spousal support (alimony), and property division.
A spouse generally can’t stop a divorce just by disagreeing with it or refusing to sign the divorce papers. And they also can’t stop a divorce by disappearing to prevent you from serving divorce papers.
Service By Publication
So, that brings us back to the original question: What happens if you can’t find your spouse? If you file for divorce and can’t find your spouse to serve them, all is not lost. You can file a Motion to Serve by Publication or Posting, requesting something called “service by publication.” The motion requests the court’s permission to publish a notice of the divorce in the newspaper or post it in the courthouse instead of serving it on your spouse.
There are a few requirements you’ll need to meet before the judge grants your motion and allows service by publication. You’ll need to demonstrate that you made diligent efforts to find your spouse and that your spouse can’t be found.
This means that you must try to find your spouse. The law doesn’t always say exactly what you need to do, however. It’s really up to the judge to decide if you’ve done enough. In your motion, you’ll need to detail exactly how you tried to find your missing spouse. Here are some things a person might want to consider:
- Sending the divorce papers by certified mail to your spouse’s last known address
- Go in person to your spouse’s last known address
- Check with any family members or mutual friends who might know where they are
- Check criminal court, DMV, and property records
- Check the Federal Bureau of Prisons website
- Check the U.S. military locator website
- Check local hospitals and homeless shelters
Documentation of your due diligence is critical, so keep a list of everything you did, including the addresses you tried, the places you contacted, and the letters and emails you sent and received. If mail came back to you as undeliverable at your spouse’s last known address, keep that as proof.
If your motion is granted, you’ll need to follow certain publication requirements. The law is state-specific, of course, but you can expect that notice must be published a certain number of times in one or more newspapers, or posted in the court for a certain amount of time. When this has been done, you’ll file written proof of service. The newspaper usually provides the supporting documentation you’ll need.
Is Service By Facebook Message Allowed?
Service by publication or posting might not be your only options. It’s not unheard of for people to request alternative methods of service when a spouse has abandoned the marriage or is evading service.
In a 2015 case called Baidoo v. Blood-Dzraku, courts in New York State allowed a woman to serve her husband via private Facebook message. The couple’s relationship had fallen apart almost immediately when the husband refused to participate in a traditional Ghanaian wedding ceremony. As a result, they had never lived together. The husband had no known address, no employer, and he refused to make himself available to be served with divorce papers. The case made national news because it was the first time a court allowed a social media account as the sole method of serving divorce papers.
What About Service By Email?
The court in Baidoo noted that service by email has become increasingly common. However, it’s still generally not allowed as the primary means of service in most jurisdictions. If you can’t locate your spouse to serve divorce papers in person or by certified mail, you may be able to talk with your family law attorney about service by email, text, or social media. Like most legal issues in divorce law, your options depend on your state’s laws and the facts of your case — so it’s best to talk with an attorney about what’s right for you.
