Divorcing a Missing Spouse

Many times people marry and then separate without divorcing. Later, for any number of reasons, one spouse then faces the task of divorcing a missing spouse.

To do so, the divorcing spouse must ask the court for permission to make constructive notice of service. Before this can be done, however, most courts demand that the divorcing party make what is called a “diligent search.” This means the divorcing spouse must show a good faith effort at locating the missing party by contacting friends and relatives, former employers, writing to last known addresses. The requirements of the search vary from jurisdiction to jurisdiction.

After the court is satisfied with the effort, the judge grants the moving spouse permission to publish notice of the divorce. Sometimes this means posting a notice of the pending divorce on a bulletin board in the courthouse, but usually it means running a notice (and in some cases, a summons) in a newspaper in a place where the missing spouse might see it. The publication must be repeated, usually for two to three weeks. The moving spouse then presents the court with an affidavit certifying publication, and the missing spouse is considered served.

Since the missing spouse has not responded to the notice or summons, the case then moves forward as a default action.

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