It’s 2019 already and the number of divorces being registered in the USA is slowly taking an upward trend. In fact, in 2018, it was reported that nearly 50% of all new marriages will end in divorce. This is no different from the previous years from 2000-2014.
Divorces generally fall into two categories: no-fault and at-fault, and they happen for several reasons. The distinction between these categories depends on the state or country where one resides in, and each case has a different resolution process starting from the paperwork, filing fees to logistics and determination criteria.
But these categories may not include a case where the one being divorced is nowhere to be seen. Anyone who finds themselves in such a situation is in a classical category of missing spouse divorce or more commonly known as ‘divorce by publication.’
Divorce by publication often requires certain conditions to be met which may differ from state to state or country to country. The laws too may vary based on which state the divorce process is being executed.
So, what happens when you want to divorce your spouse, but they can’t be traced? Here’s a general guide that takes into consideration the necessary steps that are universally accepted or practiced in most states or countries across the globe where there are laws that govern missing spouse divorce.
Before you decide to start the divorce proceedings, you need to start by choosing where to file your divorce and understand the requirements of that state.
In some states, you can only file a divorce case in a state you’ve been living in for the past 6 months or more.
With this in mind, you then need to provide evidence of your search for your spouse. You must show proof of this search. It’s this proof that will allow your attorney to file an affidavit regarding your efforts to locate your spouse.
The court must determine that you actually looked for your spouse with no success otherwise the case will be revoked.
Divorcing a missing spouse; the processes and stages
As witnessed in most divorce cases, the process of filing for divorce usually starts with your attorney serving your spouse with the divorce papers/action. The serving usually takes place at your spouse’s last known address or sometimes in hand if they can be located.
In this case, your spouse is assumed by law to have received and confirmed the papers which gives your attorney the right to move on with the case.
However, if your spouse is missing and untraceable, there’s an option allowed by law where you obtain an Order of Notice by Publication.
Order of Notice by Publication
The Order of Notice by Publication means that you are required to put out a notice of your intent. This is done by publicizing your intention to divorce in a newspaper that covers an area of your spouse’s last known address or whereabouts.
In some states, this legal advertisement is required to be run for at least three weeks, giving your spouse enough time to respond to the advert before a final notice is executed.
Now if they don’t show up or respond, then your missing spouse divorce case becomes even easier or at least, will proceed on to the next stage. At this stage, you and your attorney are allowed to advance to the final stage of the divorce process by default.
If the judge is satisfied with your input and is also convinced that your spouse must have heard or seen the notice of the impending divorce proceedings, then you can divorce your spouse without their input or even in their absence. The notice by publication is your best bet anytime you are filing a divorce for a spouse who has gone MIA.
In the courtroom, an affidavit of marshal service showing proof or confirming that the publication indeed took place as well as a copy of the publicized notice will need to be filed in court by you and your attorney. While in some states and countries, another affidavit of Military Service is also necessary to confirm that your spouse is not in the military.
With all these done, your divorce may be processed even without your spouse’s participation. The court is allowed to enter orders prompting the effective dissolution of any martial estate, orders affecting children and any other order that nullifies the connection between the two of you as well as nullifying property division between you and your now divorced spouse.
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