Spouse MIA? Divorce Anyway
Legal: Tips on How to Get Divorced when You Don’t Know Where Your Spouse Is
Being abandoned by someone who promised to love you until death is an emotional nightmare. What do you do when you’ve decided they’re not coming back and it’s time to move on? Divorce 360 went to Thomas W. Wolfrum, a Walnut Creek, Calif.-based certified Family Law Specialist who is a Fellow of the American Academy of Matrimonial Lawyers, to find out.
Divorce 360: Where do you start the divorce process when you can’t find your spouse?
Wolfrum: Begin by filing your petition or initial application just as if you were living in the same house with your spouse. Then, do due diligence to try and find the absentee spouse. You might go to the post office and see if they left a forwarding address; or send a letter to the last place you knew they lived; or call a relative of theirs and ask if they know where this person is. You might also hire a process server or private investigator to show up at the last known address. If you still can’t locate them to serve them in person, the next step is to file an application with the court to do substitute service by publishing a copy of your application for summons and complaint for divorce in the legal notices section of the newspaper. But, due diligence has to come before you go to court to get authorization to publish summons. You can’t just go directly to publishing. So, wait until the court gives you an order for publication.
Divorce 360: Is it important to document your due diligence?
Wolfrum: Yes. When you ask the court for permission to publish, you need to show that you tried to find your spouse. So, keep records, such as: I went to the Wilmington, Del., post office on March 20, 2008 at 12 p.m. I talked to employee John Smith and inquired about a forwarding address. Mr. Smith was not able to give me a forwarding address. On March 20, 2008 at 5 p.m., I called my spouse’s sister (name) and inquired about my spouse’s location. I didn’t get any new information on where my spouse might be. If you hired a process server, state that on a certain date, you mailed or faxed a copy of the summons and petition to so-and-so, a registered process server, and asked them to go to 123 Main St., Reno, Nev., your spouse’s last known address. Have the server write a narrative of what occurred: “On March 28, 2008, I knocked on the door and asked if John Q. Absent was there. The person who answered door said John had lived here for five years but he didn’t know where he was now.” Then, attach that to your file. You need to have the facts of your due diligence, because if you don’t, the whole process could be set aside if the absentee spouse shows up.
Divorce 360: Once the court gives you the go-ahead, does it matter which paper you publish in?
Wolfrum: Most states require that permission is given to publish the summons in a newspaper most likely to give the defendant notice. If you live in San Francisco, but your spouse’s last known place of residence was Reno, publish in Reno. When you file your application for publication, it’s a good idea to say you checked and the local Chesapeake Bay Express is an authorized publisher of legal notices and that’s where I want to publish.
Divorce 360: How long do you have to publish your summons?
Wolfrum: Each state has its own rules. Each court maintains a Web site and on that Web site, under the family law or divorce code section, you can find local rules that tell what they need you to do if you want to divorce when you can’t find your spouse and how often you must publish. The newspaper will give you documentation, saying this is when you published. File that with the court to show you’ve done due diligence and followed proper procedures.
Divorce 360: What happens if you think your spouse might be out of the country?
Wolfrum: The Hague Convention on Service of Process has rules if you’re trying to serve an international party or if the party you’re trying to serve is outside the U. S. If it gets to that, see your attorney.
Divorce 360: Does it matter if children are involved?
Wolfrum: Yes. If children are involved, there are special rules under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) and the federal Parental Kidnap Prevention Act (FPKPA). If someone has been abandoned and they have their children with them, they want to get a custody order so they have sole legal and physical custody of children. Their service of summons and petition has to comply with UCCJEA and FPKPA. See your attorney.
Divorce 360: Once you’ve followed the process for service and waited the proscribed length of time, what happens if you still can’t find your spouse?
Wolfrum: “You can file a document with the court requesting to enter a default. After the clerk files that document, you can file a request to prove-up your case.” The procedure varies from state to state. In some states, the prove-up is done by going to court and testifying. In other states, you can submit an affidavit or declaration. Check your local court website for forms and rules. Now, you basically have a one-sided hearing. You go to court and say what you want to say about property division, child support and custody, spousal support, and attorney’s fees and if only one side shows up for the hearing, and if you’ve gotten jurisdiction by correctly servicing the defended spouse, than the court grants you what you’ve asked for.