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When a Spouse Cannot Be Found in Illinois
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, cannot be served the divorce papers), the Petitioner must conduct what is termed a good faith effort followed by Service by Publication. The court permits service by publication only when the Petitioner cannot locate a missing spouse.
Illinois Search Requirements and Process
Illinois 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. "Service by publication is only available when the Respondent's whereabouts is unknown in spite of diligent effort by the petitioner to find the respondent"s address."
Illinois courts grant a divorce if only one party resides in the state; however, the other spouse must be notified of the divorce and be given a reasonable opportunity to respond. If the other spouse cannot be located, courts require that a good faith effort "using reasonable means." A spouse may then divorce a missing spouse undertaking Service by Publication -- a newspaper advertisement informing him or her that there is a divorce proceeding against him or her. In this routine, the Petitioner files for divorce in the normal manner, and then runs the advertisement in a newspaper of general circulation. The Petitioner must also sign an affidavit stating he or she looked for the spouse to the best of his or her ability, and the action then proceeds as what is called a default divorce.In a default divorce, the Respondent does not do anything, and the Petitioner spouse wins the action by default.
In Illinois, a good faith search means the Petitioner should search the phone book and directory assistance in the area where he or she lives and in the area where the missing spouse is last known to have lived, ask friends and relatives who know the whereabouts of the missing spouse, check the post office for a forwarding address, check with the tax collector to see if the missing spouse owns property, contact landlords and prior employers and check with the registrar of voters.
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 Illinois
Authorized where defendant resides out of state or cannot be found on due inquiry, and after notice has been sent to the defendant's last known address, divorce by publication means the missing spouse loses after three successive weekly publications in a newspaper published in the county in which the action is pending.
The Petitioner must file at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant has gone out of the state or upon due inquiry cannot be found or is concealed within this state so that process cannot be served upon him or her. In addition, the affidavit must state the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained. Once this Affidavit is filed, the clerk will initiate publication in a newspaper published in the county in which the action is pending.
If there is no newspaper published in that county, then the publication will be in a newspaper published in an adjoining county having a circulation in the county in which the action is pending. Publication must contain notice of the pendency of the action, the title of the court, the title of the case, including the names of the plaintiff and the 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. The clerk will also, within ten days of the first publication of the notice, send a copy of the notice by mail to the defendant whose place of residence is stated in the affidavit. The certificate of the clerk that he or she has sent a copy is evidence that the mailing has been completed. The publication may be made at any time after the suit has been filed.
> When the missing spouse fails to respond within the time limit, the action proceeds as an uncontested default.
The cost of publication varies depending on the newspaper, but is normally in the range of $65.
The court can grant the divorce in a publication action, but it cannot make any decisions regarding child custody, child support or division of property.
The Illinois Code of Civil Procedure governs Illinois Service by Publication under 735 ILCS 5/2-206, 207.
Copyright Notice: These Illinois 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.