You can still get a divorce even if you don't know where your spouse is. But courts require you to make a genuine effort to find your spouse and let them know you've filed for divorce before a judge will grant.
This type of divorce is sometimes called "divorce by publication," because it typically involves publishing a legal notice in a local newspaper. But that's just one step in the process. If your spouse never responds to the notice, the divorce moves forward without them in a process called "default divorce."
The exact steps you'll need to follow depend on your state's laws and your local court rules. The general process, however, tends to follow the same basic steps outlined below.
Requirements for Serving a Spouse With Divorce Papers
A fundamental principle of our legal system is due process: anyone named in a lawsuit, including a divorce petition, has the right to be notified, appear in court, and respond. When you file for divorce, your spouse has the legal right to contest your claims about the grounds for divorce and the requests you've made regarding issues like marital property, alimony, and child custody and support. To give your spouse a chance to exercise this right, you must legally "serve" your spouse with a copy of the divorce papers.
Each state has strict rules about how to serve legal papers. These rules also set forth alternative procedures to use when standard methods, such as hand-delivery by a process server, fail because the person you're trying to serve can't be found.
How to Request Permission for Service by Publication
If you can't have your spouse personally served with divorce paperwork, you must formally ask the court for permission to use another method of service, most commonly service by publication.
Local courts typically have their own rules for how to make this request, so you should ask your local court clerk for details. Sometimes, you'll have to file a formal request with the court. In other places, you might be able to fill out a court-provided form. A judge or court official will review your documentation, focusing on whether you have made a diligent effort to locate your spouse, before deciding whether to allow service by publication.
What Do You Have to Do to Look for Your Missing Spouse?
Before a court will grant you permission to use service by publication—or another alternate method of notifying your spouse about the divorce—you typically must show that you've done everything reasonably possible to find your spouse and serve the papers personally.
Here again, local courts often have their own specific requirements about these "diligent search" efforts. But courts may require you to do at least some of the following in an effort to find your spouse:
- Mail a letter to the spouse's last known address with "return service requested" noted on the envelope, allowing the postal service to return any forwarding information.
- Contact known associates, including friends, family members, former landlords, and past employers.
- Reach out to organizations, such as relevant professional associations, licensing boards, or unions to which the spouse belonged.
- Conduct online searches using both free search engines and public record databases.
- Check online directories or digital white pages for updated contact listings.
- Check correctional facility databases (federal, state, and local county jails) to ensure the spouse is not incarcerated.
- Review county tax and property records where the spouse may be living or owning assets.
- Review social media accounts for location clues or send a direct message to try to make contact.
Check with your local court clerk or your local court's self-help center to learn more about what you need to do. And be sure to keep detailed notes (and documentation, when possible) about your search efforts.
What If You Successfully Locate Your Spouse?
If your search efforts are successful and you find your spouse, you will then have to serve your divorce papers by the normal method—and you won't qualify for a default divorce unless your spouse doesn't respond after receiving the paperwork.
But in that situation, be sure to find out if your spouse would be willing to cooperate with you and sign the papers for an uncontested divorce. In that case, an online divorce service could be the ideal solution for simplifying the divorce process.
How Does Service by Publication Work?
If the court grants your request for an alternate method of service, you'll receive detailed instructions for what to do next. Usually, you'll need to publish a notice about the divorce proceeding in a newspaper that your spouse is most likely to see. You can often submit the notice to the newspaper online.
Typically, the notice will have to run once a week for at least four weeks. The newspaper will charge you a fee. The amount will depend on the paper's ad rates, which vary by region and publication size.
Are There Other Ways to Notify a Missing Spouse About a Divorce Case?
Some states allow other methods of alternate service when you can't find your spouse. For instance, some courts allow you to post a notice in the courthouse nearest to your spouse's last known address.
A few courts have started to allow alternate service methods like notifying a spouse about a divorce through social media or email. Your local court clerk can tell you whether this or any other service method is available in your county.
Getting a Default Divorce From a Missing Spouse
After you've completed the requirements for service by publication (or another alternate method), you'll need to wait for a while before you can do anything else. That's because state laws or court rules require your spouse to have a minimum amount of time to see the notice and respond.
The waiting period is usually longer than the standard 30-day response window for personal service, often spanning weeks or months after the last publication date.
Requesting a Default Divorce
Once the waiting period expires with no response, you can file a request for a default divorce, along with proof that you served your spouse by publication or another legally allowed method. You will also likely need to submit a proposed divorce judgement that is consistent with what you originally asked for in your initial divorce petition.
If your state doesn't allow default divorces, you'll request a final divorce hearing. Note that some states have an additional waiting period before you can get your final divorce hearing or before the judge may issue the divorce decree.
Finalizing Your Divorce From a Missing Spouse
Depending on where you live, you may or may not have to attend a hearing to get a default divorce. In many states, a judge will review your paperwork and, if you've met all the requirements, will sign a default divorce judgment that includes what you requested in your initial petition or complaint.
In other states, however, you'll need to justify your requests at the hearing on your divorce. The judge will then consider your evidence and make a decision based on the law.
Potential Outcomes After a Default Divorce
It is important to note that a default divorce judgment is not always permanent. Most states grant a non-responsive spouse a specific window of time to file a motion to "set aside" or vacate a default judgment if they later discover the divorce occurred. If the ex-spouse can demonstrate a valid legal reason for their absence and show they were truly never notified, a judge may grant the motion and essentially reopen the divorce case.
