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When a Spouse Cannot Be Found in West 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 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 receive service of process), the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
West Virginia's Search Requirements and Process
West Virginia courts require that the Petitioner make a notarized statement that he or she has used "due diligence to determine the address of the [missing spouse] and have been unable to locate it, and therefore the address of the [missing spouse] is unknown..."
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 West Virginia
When the missing spouse cannot be located, the Petitioner files an Affidavit of Non-Residency or Unknown Residency (SCA-FC-110), the notarized statement which affirms the he or she has used due diligence, and files it with the Deputy Clerk, who, in turn, completes an Order for Publication (SCA-FC-111). The Order permits the Petitioner to publish the notice of the action in a newspaper in the county where the case is filed. The notice appears once a week for two weeks. After publication, the Petitioner completes an Affidavit of Publication, which certifies that publication happened. The missing spouse has 30 days to respond. If there is no response, the case moves forward as a default.
In West Virginia, Service by Publication can be used only in two situations: 1) where the missing spouse's address is unknown and 2) where the respondent lives out of state and will not return receipt for service by certified mail.
The Petitioner must realize that service by publication limits the court's ability to award child and or spousal support, and should not be used if the only ground for the action is irreconcilable differences.
From start to finish, Service by Publication takes about two to three months.
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.
West Virginia Service by Publication is described in the West Virginia Code.
Copyright Notice: These West 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.