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When a Spouse Cannot Be Found in Montana
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 by the Sheriff in the county where the spouse resides), the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
Montana's Search Requirements and Process
Montana 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 with due diligence. This search may entail checking the telephone book and directory assistance, asking friends and relatives about the location of the missing spouse, checking the post office for any forwarding address, and checking any other possible sources that might lead to a current address.
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 Montana
If the search is fruitless, the Petitioner prepares and files an Affidavit of Publication, an Order for Publication of Summons and a Summons for Publication. The Affidavit for Publication is a notarized statement affirming that the missing spouse "resides out of state" and/or "has departed from the state" and/or "cannot, after due diligence, be found within the state" and/or "has concealed himself/herself in order to avoid service of summons." The Petitioner must prepare an original and two copies of each of the three documents, which are conveyed to the Clerk of the District Court, who signs, dates and stamps the Order for Publication of Summons and the Summons for Publication.
The Petitioner must mail or hand deliver one copy of the Order for Publication of Summons and Summons to the designated newspaper, which publishes them for once a week for three weeks. After the newspaper publishes the Summons, a responsible party at the newspaper sends the Petitioner a notice called Proof of Publication. After the Petitioner receives the Proof of Publication, he or she files the original with the Clerk of the Court and at the same time files the original Summons.
The Petitioner then waits 21days. If the missing spouse has not responded, the Petitioner may then file for a default judgment in his or her favor. At the same time, the must complete and make two copies of Findings of Fact, Conclusions of Law and Final Decree of Dissolution and two copies of a Final Parenting Plan, plus one copy of Request for Entry of Default, Application for Default Judgment and Waiver of Final Disclosure Requirements, Entry of Default, Request for Hearing and Order and Vital Statistics Form.
The Petitioner files the Request for Entry of Default, the Entry of Default and Request for Hearing and Order, after which the Clerk schedules a hearing, and leaves the original copies of the Findings of Fact, Conclusions of Law and Final Decree of Dissolution and Final Parenting Plan with the Clerk, who conveys them to the judge to review before the final hearing. After a few questions at the hearing, the judge signs the decree at the hearing. At the hearing, the Petitioner must present two copies of the Findings of Fact, Conclusions of Law and Final Decree of Dissolution and the Final Parenting Plan, which are presented to the Clerk who stamps them.
Montana Service by Publication is described in Montana Code Annotated.
Copyright Notice: These Montana 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.