Divorcing a Missing Spouse

Even if you don't know where your spouse is, that doesn't mean you can't get a divorce. But judges prefer not to grant a divorce without one spouse's knowledge. So you'll have to jump through some hoops to show that you've made every possible effort to find and notify your spouse that you've filed for divorce.

Sometimes, divorcing a missing spouse is referred to as "divorce by publication," because it usually involves publishing a notice about the divorce proceeding in a newspaper (more on that below). But the process is more complicated than that, and—unless your spouse eventually shows up and responds to the notice—it's more accurate to call it a "default divorce."

State laws and local court rules determine the specific requirements for getting divorced when you can't locate your spouse. But it helps to understand how the process typically works and the basic steps discussed below.

Requirements for Trying to Serve a Spouse With Divorce Papers

It's a fundamental principle of our legal system that anyone who's been named in a court case (including a divorce) has the right to know about the case, appear in court, and respond to the proceeding. So when you've filed for divorce, your spouse has the legal right to disagree with anything you've stated about your marriage (such as property you own together or the reason your marriage is ending) and the requests you've made (such as for child custody, child support, or alimony). And in order to have that right, you must "serve" your spouse with a copy of the divorce papers.

States have very specific rules about how to serve legal papers and what to do when the most common legal methods—usually by having the sheriff's department or a private process server hand deliver the documents to your spouse—don't work.

How Do You Request Permission for Service by Publication?

Obviously, if you can’t locate your spouse, a process server won’t be able to deliver the divorce papers in person. In that situation, you’ll need to ask the court for permission to use another method of service—usually service by publication.

Local courts typically have their own rules for how to make this request, so you should ask your local court clerk for details. Sometimes, you'll have to file a formal legal request (or motion) with the court. In other places, you might simply fill out a form and give it to the clerk.

However you've made your request, a judge (or sometimes another court official) will make a decision after reviewing the information you've provided, including what you've done to try to find your spouse.

What Do You Have to Do to Look for Your Missing Spouse?

Before a court will grant you permission to use service by publication—or another alternate method of notifying your spouse about the divorce—you typically must show that you've done everything reasonably possible to find your spouse and serve the papers personally.

Here again, local courts often have their own specific requirements about these "diligent search" efforts. But courts may require you to do at least some of the following in an effort to find your spouse:

• mail a letter to the last address you have for your spouse, with "return service requested" noted next to your return address on the envelope, so that the post office will send you any forwarding address it has
• contact your spouse's friends and family, as well as previous landlords and employers
• check with any union your spouse belonged to or any licensing agency or professional association to which your spouse might be connected
• conduct an online search, at least through a free search engine and perhaps with a paid internet search service
• check directory assistance or phone books anywhere you think your spouse might be (although this is less likely to be successful when most people only have mobile phones)
• check with the federal and state prison system, as well as local county jails, to see if your spouse is incarcerated
• check the tax records in any county where your spouse might be living
• try to find any location information on your spouse's social media accounts, and
• send a direct message through social media to see if you get a response.

Check with your local court clerk or your local court's self-help center to learn more about what you need to do. And be sure to keep detailed notes (and documentation, when possible) about your search efforts.

What If You Manage to Find Your Spouse?

If your search efforts actually turn out to be fruitful and you do find your spouse (which most people do), you will then have to serve your divorce papers by the normal method—and you won't qualify for a default divorce unless your spouse doesn't respond after receiving the paperwork.

But in that situation, be sure to find out if your spouse would be willing to cooperate with you and sign the papers for an uncontested divorce. That way, 3StepDivorce™ could be the ideal solution for simplifying the divorce process.

How Does Service by Publication Work?

If the court grants your request for an alternate method of service, you'll receive detailed instructions for what to do next. Usually, you'll need to publish a notice about the divorce proceeding (including certain specific information) in a newspaper that your spouse is most likely to see. You can often submit the notice to the newspaper online.

Typically, the notice will have to run once a week for at least four weeks. The newspaper will charge you a fee. The amount will depend on the paper's ad rates, but it could be as much as a few hundred dollars in a big city.

Are There Other Ways to Notify a Missing Spouse About a Divorce Case?

Some states allow other methods of alternate service when you can't find your spouse. For instance, some courts allow you (or the county clerk or sheriff) to post a notice in the courthouse nearest to your spouse's last known address. But you might have to qualify for this "service by posting." For instance, California requires that before you can use this method of service, you have applied for and received a waiver of the court fees in your divorce case, because you couldn't afford to pay.

A few courts have started to allow alternate service methods like notifying a spouse about a divorce through social media or email, though this is far from common. Your local court clerk can tell you whether this or any other service method is available in your county.

Getting a Default Divorce From a Missing Spouse

After you've completed the requirements for service by publication (or another alternate method), you'll need to wait for a while before you can do anything else. That's because state laws or court rules require that your spouse has a minimum amount of time to see the notice and respond.

The time to respond is usually longer when you've used service by publication—typically a couple of months, or even more after you'd added up the time for publication and the time after that for filing an answer to the divorce complaint or petition.

Requesting a Default Divorce

Once that time has elapsed with no response, your next step in most states will be to file a request for a default divorce, along with proof that you served your spouse by publication or another legally allowed method. You might need to submit a proposed divorce judgment, but it shouldn't include anything you didn't initially request when you filed for divorce.

If your state doesn't allow default divorces, you'll simply request a final divorce hearing. Note that some states have an additional waiting period before you can get your final divorce hearing or before the judge may issue the divorce decree.

Finalizing Your Divorce From a Missing Spouse

Depending on where you live, you may or may not have to attend a hearing to get a default divorce. In many states, a judge will review your paperwork and, if you've met all the requirements, will sign a default divorce judgment that includes what you requested in your initial petition or complaint.

In other states, however, you'll need to justify your requests at the hearing on your divorce. For example, Texas doesn't allow "true" default divorces—meaning that a judge won't grant a divorce based on your petition when your spouse hasn't filed an answer. (Tex. Fam. Code § 6.701 (2022).) Instead, you'll have to provide evidence at a court hearing to show that what you've requested is fair (like how you propose to divide your marital property). The judge will then consider your evidence and make a decision based on the law.

After a Default Divorce

Be forewarned: Depending on when (and if) your missing spouse finally finds out about your default divorce, you might have to start all over. That's because in most states, a spouse who didn't respond to the initial petition has a certain period of time in which to ask a judge to set aside (or overturn) a default divorce judgment. If your ex has a good reason for not responding, the court could very well grant that request. Then you would have to file a new divorce petition and begin the process again.