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When a Spouse Cannot Be Found in Delaware
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 publication comes into play. Divorce by publication 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. Service by publication 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, fails to respond to the Summons), the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
Delaware's Search Requirements and Process
Delaware courts require a good faith effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. This search includes talking with friends and relatives of the missing spouse and checking the Internet.
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 Delaware
If the search is fruitless, the Petitioner must complete an Affidavit that a Party's Address is Unknown form and an Affidavit that a Party's Social Security Number is Unknown form. Like efforts to find the missing spouse's address, a good faith attempt must be made to locate the Social Security number.
Both the Affidavit that a Party's Address is Unknown form and an Affidavit that a Party's Social Security Number is Unknown form must be obtained in Family Court, and neither should be completed until the search for both is made.
On the Petition for Divorce/Annulment, the Petitioner must indicate 1) whether his or her spouse lives out of state and it is "unlikely that my spouse can be personally served" and/or 2) his or her address is unknown. In either case, the Petitioner must ask the court that the missing spouse be served by publication.
On the Request for Notice, which is a request for a summons, the Petitioner must indicate the newspaper he or she has selected from the list of approved newspapers. The notice gives the missing spouse 20 days to respond or face a default judgment in favor of the Petitioner.
Delaware Service by Publication is described in 13 Del.C. § 1508.
Copyright Notice: These Delaware 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.