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When a Spouse Cannot Be Found in Virginia
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 missing spouse cannot or will not be found (and, therefore, the Sheriff or private process server cannot deliver the divorce papers to him or her, which is the preferred route), the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
Virginia's Search Requirements and Process
Service by publication is only available when the Petitioner does not know where the missing spouse is presently located and his tried unsuccessfully to serve process by the Sheriff or a private process server. Proof of these efforts, even when unsuccessful, must be included in the file. Virginia 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.
The diligent search may entail checking the telephone book and directory assistance in the area where the Petitioner lives as well as in the area where the missing spouse is last known to have lived; asking friends and relatives who might know the location of the missing spouse; checking the post office for any forwarding address of the missing spouse; and exploring 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 Virginia
If the search is fruitless, the Petitioner files an Affidavit for Service by Publication, a notarized statement affirming that "diligence has been used without effect to ascertain the location of the party to be served'' and that the Sheriff has been unable to serve the process for 21 days. The affidavit also must state the last known address of the missing spouse.
When the court is satisfied with the effort, it Issues an Order of Publication, which gives the Petitioner permissions to publish a Notice of Publication. The notice is published once a week for four consecutive weeks in a newspaper selected by the Petitioner. The Clerk of the Courts arranges for the publication, but the billing is sent to the Petitioner.
If the missing spouse fails to file an answer within 21 days, the Petitioner may move for a default.
Virginia Service by Publication is described in Virginia Code §§ 8.01-316-317; 20-104, 104.1 and 105.1.
Copyright Notice: These Virginia 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.