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When a Spouse Cannot Be Found in Colorado
When one spouse wants to call it quits but cannot find his or her missing partner, or when he or she is hiding, divorce by Constructive Service comes into play. Divorce by Constructive Service happens only after a judge has been convinced, based on a sworn declaration, of the serving party's inability to find the Defendant after trying hard and is commonly used in a divorce action to serve a spouse who has disappeared without a leaving a forwarding address.
When the Respondent cannot or will not be found (and, therefore, cannot be served the divorce papers), in Colorado the Petitioner must conduct what is termed a good faith effort followed by Constructive Service - either by certified mail or publication by consolidated notice or publication of Summons (individual). Normally, the court permits Constructive Service only when the Petitioner cannot locate a missing spouse.
Each of these measures requires a Verified Motion and Order attesting to the Petitioner's inability to locate the missing spouse.
Colorado's Search Requirements and Process
Colorado courts require a diligent effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. The diligent effort might include searching the phone book and directory assistance in the area where both spouses live or may have lived, asking friends and relatives of the missing spouse, checking the post office for a forwarding address, checking with the tax collector to see if the missing spouse owns property, contacting landlords and prior employers.
In order to be eligible for a "Divorce by Publication", you must complete and submit an Affidavit of Diligent Search to the court. This document clearly outlines all of the actions you have taken to locate your spouse, essentially proving to the court that your spouse absolutely can't be found.
If you actively pursue locating your spouse through the methods outlined in the Affidavit of Diligent Search, and still can't locate your spouse, then a "Divorce by Publication" is your likely method of getting a divorce.
Filing for Divorce by Publication in Colorado
That failing, the courts permit the Petitioner to mail the Petition and Summons via Certified Mail, which if successful, begins a 90-day waiting period.
In Colorado, some courts do the certified mailing for the Petitioner; others require the Petitioner to do it for himself or herself. If service by certified mail fails, Colorado courts require that the Petitioner file another Verified Motion and Order, this time asking for permission to publish. This is because in all cases, the missing spouse must be notified of the divorce and be given a reasonable opportunity to respond. If the other spouse cannot be notified by mail or publication, the courts regard the "legal fiction" of the efforts as service.
The Petitioner may seek Publication by Consolidated Notice, which means the action is listed in a group of similar actions, or Publication of Summons, which means that Summons is published in a local newspaper for four times at one-week intervals. In both cases, a 90-day waiting period begins after the last date of publication.
The consolidated notice is published in the county where the action is filed. The Summons may be published in the county where the missing spouse may be living.
The Publication of the Summons contains notice of the pendency of the action, the title of the court, the title of the case, including the names of the first named plaintiff and the first named defendant, the number of the case, the names of the parties to be served by publication, and the date on or after which default may be entered against such party. If the missing spouse fails to respond, the action then moves along as a default divorce. In a default divorce, the Respondent does not do anything, and the Petitioner spouse wins the action by default - in this case, after four successive weekly publications in a newspaper published in the county in which the action is pending.
When the missing spouse fails to respond within the time limit, the action proceeds as an uncontested default. After the 90 days, the court may grant the divorce.
The cost of publication varies depending on the newspaper. Local newspapers are usually much less expensive than larger, big city publications.
A divorce by Publication of Summons works to the advantage of the Petitioner who can be given title to in-state real estate as well as other titled assets.
The Colorado Code of Civil Procedure governs Colorado Constructive Service.
Copyright Notice: These Colorado divorce laws above are copyrighted by Divorce Source, Inc. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.