In the past, the law required both spouses to agree to divorce before a court could terminate a marriage. Now, though, it's possible to file for divorce even when you don't know where your spouse is. The only catch is that you can't get a divorce without at least attempting to formally notify your spouse about the proceedings.
No court can begin processing a divorce request until the filing spouse "serves" (notifies) the other spouse with divorce papers. But successfully serving your spouse without a current address can be a problem.
"Service of process" is a fancy way of describing a formal delivery of documents in the manner required by law. After you complete service of process, you submit a "proof of service" form to the court. Once the court receives the proof of service, it can begin processing your case.
The most common way to serve process is to hire a private company or your local sheriff's department (for a fee) to complete service on your spouse. (You can't deliver the documents yourself.) Most process servers and sheriff offices won't agree to attempt service without a current address, though. If you can afford it, you might be able to hire someone to track down your spouse. But an investigation like that can get expensive quickly, without any guarantee of success.
If you don't know where a process server can find your spouse, you're probably not going to be able to use any of the traditional methods of completing service. Don't despair, though. The courts have options for how you can move forward with your divorce.
If you can't find your spouse, you can ask the court to use an alternative method of service, such as publication in a newspaper. In many courts, you have to file a "motion" to request permission to use another method, but in some courts (including those in California and Texas), you simply file a form with the county clerk requesting to serve by an alternate method.
Before a court will grant a request to use an alternative method of service, the judge will want you to demonstrate that you've made diligent or reasonable efforts to locate your spouse.
Every court has its own definition of what is considered enough effort before it will allow you to use alternative service method. Generally, you'll need to provide proof that you've attempted to serve your spouse at your spouse's last known employer, home address, or any other address where it's possible your spouse might be found. Or you might need to show that you've made efforts to find out if your spouse is incarcerated or living with family members.
If you can show you've tried to serve your spouse at least three times before asking for alternative service, you have a better chance of the judge considering your efforts enough and granting your motion.
The most common type of alternate service is "service by publication." When you serve by publication, you place a notice in a newspaper. Make sure you find out from the clerk the procedures you have to follow—every court's rules about publication and notice are different, and failing to follow them could result in the court requiring you to start the service process all over (resulting in a longer time to finalize your divorce). If your court has a form to request service by publication, the form should have instructions on what you need to do.
Most often, you'll need to place an ad in the local newspaper located closest to your spouse's last known address, and you'll need to pay to run the ad for a certain length of time (usually at least three weeks). The cost for publication is set by the paper. You are responsible for paying the costs, but you might be able to recoup the costs from your spouse later in the divorce.
Although it's rare, some courts have allowed spouses to give notice using social media, like Facebook. When you request alternative service, the court will tell you the options available to you.
A less common method of alternate service is "service by posting." This means you, the county clerk, or the sheriff will post a notice in the courthouse closest to your spouse's last known address. Some courts have a form you can fill out requesting service by posting—the form should include instructions for posting. A few states, such as California, allow you to use service by posting only if you file a fee waiver in your divorce because you can't afford to pay the filing fees or fees for publication.
After you've completed the steps required to serve your spouse (whether by traditional service, service by publication, or another method), your spouse has a certain period of time (usually up to 28 days) to respond. Usually, a spouse responds to a divorce petition by agreeing or disagreeing with the statements in the petition or complaint. But what happens when your spouse never replies?
As long as you've followed your court's procedures for serving the documents, if your spouse doesn't reply, you can request a "default" divorce.
What is a default divorce? A default divorce means that you're asking the court to process your case without your spouse's involvement. Most of the time, the court will grant the divorce and enter the orders requested in the divorce petition so long as they are fair and practical (the court might require you to provide further information supporting your requests before entering a final divorce decree). If you have minor children, the court will review the state's best interest standards and the circumstances of your case before deciding custody and child support.
Are default divorces final? Once the court grants your request for a default divorce, you should get a copy of the final divorce decree. A default divorce is just as valid and legally binding as any other type of divorce. Note that the court might require you to prepare a document called a "Notice of Entry of Judgment" and either mail it to your ex-spouse's last known address or publish it in the same manner you would publish notice of the initial divorce filing.
Most states, however, allow the defaulting spouse a certain amount of time to ask the court to set aside (overturn) the default judgment. If the defaulting spouse provides a good reason for not responding to the divorce papers in time, the default divorce could be set aside and the divorce will have to start all over again.
What if your spouse refuses to sign the papers? If you're able to find and serve your spouse, but your spouse refuses to sign or respond, what happens next depends on your state's laws. Most states let you request a default divorce. Others might allow the divorce to proceed and assign you a court appearance date. If your spouse doesn't show up, the judge will likely treat your divorce petition as being uncontested—meaning that the court will accept all the terms you requested in the divorce petition.
If your spouse responds to the divorce petition after you serve notice by publication or another alternative means, you won't be able to get a default divorce. Depending on your state's laws, you might have to refile your petition or your case might be converted to a standard divorce. But you still might be able to avoid taking your divorce case to court.
Now that you've located your spouse, you might be able to make the process quick and painless by filing an uncontested divorce. You'll be able to file an uncontested divorce if you and your spouse can agree on all the issues in your divorce, such as property division, spousal support, and child support and custody. Uncontested divorces are usually the fastest and least expensive way to get divorced, because you can often DIY your divorce or work with an online divorce service for assistance (which is far cheaper than hiring an attorney).
If you and your spouse disagree on some issues, but think that you might be able to resolve them with a bit of help, you might want to consider divorce mediation. In divorce mediation, you and your spouse meet with a neutral, third-party professional who helps you negotiate and agree on the issues in your divorce. Divorce mediation is usually faster and less expensive than battling out your differences in court. And, if it turns out that your spouse is living far away or out of state, you can conduct your mediation online so that neither of you has to travel.
For all other situations—especially if you have a complex financial situation or it looks like your spouse might want to fight over child custody or support—consider contacting an experienced family law attorney for assistance. If you can't afford an attorney, you might qualify for free or low-cost legal assistance from your local legal aid organization, or try contacting your local bar association to see if there are attorneys where you live who will represent you for free (pro bono) or for a reduced fee.