If you can’t find your spouse and you want to get divorced, the law allows you to do that as long as you follow some rules which are required to show the court that you have done everything you could do to attempt to locate your spouse. Generally, when you file for divorce, you are required to obtain personal service on your spouse by having the Sheriff or a personal process server:
- deliver a copy of the summons and the Petition for Dissolution of Marriage with your spouse personally; OR
- by leaving a copy of the summons and Petition where your spouse lives with someone else who also lives there as long as they are at least 13 years of age and the person serving the paperwork tells that person what they are serving and the person serving follows up with mailing a copy to that address.
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Personal Service When You Can’t Find Your Spouse
This service requirement can prove to be impossible if you do not know where your spouse is. There are cases where people married without really knowing each other very well and after a short time drifted apart making it very difficult to find them. Or, if your spouse simply leaves and does not want to be found it can be difficult. Does this mean you have to stay married to that person? No, it does not.
Attempt to Locate Your Spouse
If you want to proceed with a divorce and cannot find your spouse you must first make all attempts to locate your spouse and then file an affidavit with the court detailing all of the ways in which you tried to find your spouse and request that service by allowed by publication. The affidavit must state everything you have done to try to find your spouse. We advise our clients to reach out to their spouse’s relatives to see if they have a contact number; reach out to their friends, people they worked with. Call their last known phone number and their work number to see if they are there. Review Facebook. LinkedIn and other social media channels to see if you can find them. Write them a letter at their last known address to see if it gets forwarded, send them an email. A court will review this affidavit to make sure that you have done everything you can to try to find your spouse. If the court is satisfied that you have met this burden they will allow you to provide service to your spouse of the pending divorce proceedings by publication.
Notice Requirements for Divorce If You Can’t Find Your Spouse
These notices are published in a newspaper where the action is pending and contains the details of the case that has been filed, the title of the court, the title of the case and the exact names of you and your spouse, the case number and the date after which a default may be entered against your spouse. A copy of this newspaper notice must be clipped from the paper and mailed to the last known address of your spouse. This notice is required to be published at least once a week for three consecutive weeks. Once your notice has been published for three consecutive weeks you can request that the court move forward with your divorce proceedings if your spouse does not respond to the notice. A default can then take place and you can obtain a divorce as long as 30 days has passed since the date of the first publication.
The court will likely reserve things such as awarding maintenance or dividing property until you find your spouse, however, you can get divorced.
There was a recent article where a woman in Brooklyn tried to get divorced using Facebook as a tool to serve the husband and the Judge would not allow this. In an article written by Julia Marsh, the Judge was not going with the trend that has been seen in the U. S. of service using social medial as opposed to a newspaper publication. Brooklyn Supreme Court Justice Jeffrey Sunshine wrote that he would not grant that application for service via Facebook as it was akin to the court permitting service by ‘nail and mail’ to a building that no longer exists,” referring to serving a summons by tacking it to the person’s door and then mailing them a copy.
I have seen service by Facebook be successful as long as you can establish that this was a regular way of communication with your spouse and you can sufficiently authenticate that the Facebook profile belongs to your spouse and he uses it as a way to communicate. It would be prudent to attached copies of Facebook messages that your spouse posted and that of your spouse’s friends. That along with sworn testimony from you may be a way to get service by Facebook. Notice of a pending divorce is very serious and strictly adhered to by the Court. Therefore, you must do all you can to provide the necessary evidence to the Court if you want to get divorced when you can’t find your spouse.
