How to Divorce a Spouse You Cannot Find

Posted on in Divorce

Kane County divorce attorneysThere are occasions in which a divorce must proceed happen in a way very different from the norm. One of the most common is for a spouse to be missing or deliberately absent, so as to frustrate personal jurisdiction over them. This does not mean that you are stuck in a marriage you wish to dissolve; it just means that divorce must be sought in a different way.

The First Steps: Due Diligence

In a divorce, you must be able to serve your spouse with papers, as he or she has the right to appear on his or her own behalf or contest the action. However, if you cannot locate your spouse, an alternate method has to be found, and you must obtain permission to use it. The first step toward obtaining that permission is to put forth a “good faith effort” toward locating your spouse. You must be able to show the judge that you have exhausted all reasonable options to find your spouse before you will be permitted to pursue alternate service. For example, many judges require you to look in places like indexes from the Department of Motor Vehicles (DMV), Social Security’s database of deaths, or even on social media to try to find a trace of your soon-to-be ex.

If you can present proof to the family court that you have conducted a sufficiently exhaustive search, you should be granted permission to serve your spouse via publication. Illinois, unlike many other states, has very few rules that strictly regulate service by publication, only holding that if it is necessary, that service should be in a newspaper in the municipality where the parties lived.

Default Judgment

Once you have gotten permission to pursue service by publication, Illinois law holds that the notices you place should run for a set period of time. If you have not heard from your spouse after a certain time—usually three months—the next step is to go before the court and ask for a default judgment. If the judge is satisfied that all possible steps have been taken to locate your spouse, he or she will usually grant the divorce, though they may reserve certain other issues, such as spousal support.

You will almost always be granted full custody of any children, simply because custody cannot be awarded to an absent parent, but if other issues are “reserved,” it essentially means that the court is not able to rule on them. Thus, you may not be able to obtain spousal support, child support, or any other kind of property settlement. The rationale is that everyone deserves their day in court, and absent proof of death, an absent spouse is still assumed to be living and possess rights they are entitled to defend.

Ask a Divorce Attorney for Help

Being in a position where divorce by publication is necessary can be very difficult and confusing, but we can provide assistance. Contact an experienced divorce lawyer in Geneva to learn more about the process. Schedule your confidential consultation today.



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