Questions about divorcing a missing spouse are not as uncommon as one might think. People often will separate from one another and go their separate ways without obtaining a formal divorce. Perhaps they are in the military and received a change of station, or are deployed to active duty. Perhaps they accept a job in a new state, or even in a foreign country. There are all sorts of reasons why people initially separate and no longer reside together, but do not obtain a formal legal separation nor file for divorce. In these scenarios, it can be difficult to later proceed with a divorce case, because oftentimes the party seeking the divorce does not know where their spouse is, and they have mysteriously disappeared!
Illinois law contemplates this exact scenario. It is still possible to divorce a spouse who is “missing” in the state of Illinois. However, some of the issues relative to the divorce may not be able to be decided right away. However, generally speaking, the court can enter a divorce decree if all steps are properly followed, and simply “reserve” the allocation of certain property or debts until such time as the Respondent files an Appearance in the case and elects to participate.
So, how do you divorce a missing spouse?
Options for Divorcing a Missing Spouse
1. You can file for entry of a default judgment against someone when you do not know where they are and have exhausted all options to find them.
Courts want to see that you have done your due diligence to find the missing spouse and obtain their address for service of process. The court will explicitly ask you what attempts you have made to find the person and oftentimes you will be required to testify or file an affidavit listing all of the attempts you have made.
Ways to Locate a Missing Spouse
Things you can do to try and locate a missing spouse include hiring a private investigator to do a “skip trace” to try and locate a current address; call prior landlords to see if a forwarding address was left; call, email, text, or locate family members and friends of the person to try and obtain an address; conduct a google search; look for them on social media, linked in, Facebook/Meta, Instagram and other platforms; and more. The court needs to be satisfied that you have made every effort possible to try and locate the person before they will allow you to proceed to the next step.
2. If the Court believes you have exhausted all options, they may grant you permission to serve your spouse by “publication”.
The next step will be to print a notice in the newspaper regarding the case that has been filed against your spouse, including all pertinent information about the case and the deadline for the Respondent to answer the complaint. The court permits this in hopes that the Respondent or a friend or family member will see the notice and notify them of the pending court action against them. This notice is typically published for no less than six (6) weeks. After the 6 weeks of publication, the court will require proof that you published notice of the case. If the court approves the notice of publication, the Respondent is deemed “served”.
3. Enter a Judgment for Dissolution by Default
After the above steps are taken, the court can permit a divorce to be entered on a default basis. The court will usually reserve allocation of property and debts as well as support, meaning the Respondent can come back and file an appearance or answer later and the court will deal with property division or support at that time. For this reason, a divorce by default and publication is not ideal. However, it will get you actually divorced, which is the primary goal. But, it sets aside many issues for resolution at a later date, leaving them in limbo.
The takeaway is that while “divorce by publication” is a way to get divorced when your spouse is missing, it is not ideal. The court is not going to allow litigants to get what they want while divorcing by publication and default because then there is no incentive for them to comply with due process laws and give actual notice to the person they are divorcing. By allowing the divorce, but reserving all issues, the court is encouraging the party seeking the divorce to still notify the other spouse (Respondent) and try to get them to participate if they are looking to obtain support or property. It is possible to divorce a spouse who is missing, however, it simply is not ideal.
Speak to a Chicago Divorce Attorney About Divorcing a Missing Spouse
Divorce can be complicated, especially when you are unable to locate your spouse. It is important to seek advice from an experienced divorce attorney to discuss your options and plan moving forward. At Anderson & Boback, our practice is dedicated to family and divorce law and we can guide you through the process of divorcing a missing spouse. Contact us today to schedule a free consultation with one of our Chicago divorce attorneys.