When to Use Divorce By Publication

Posted on in Divorce

Geneva divorce attorneyThere are many different legal procedures related to parenting time and other divorce issues, which require the input or consent of both spouses. However, this is obviously an issue if both parties cannot be located. In cases such as this, there are times where the judge will press ahead, but most of the time, they will rule that the parent who is present should at least try to contact their absent ex-spouse. Divorce via publication is perhaps the most common way to do so.

Your “Best Faith Effort” Must Come First

When a couple decides to divorce, the spouse who files must serve the other with the papers detailing the filing. If there is a lack of service, the other spouse has the right to contest the filing. In some cases, however, the non-filing spouse might be difficult to locate, especially if he or she has essentially abandoned the family. If this is the case, Illinois courts generally hold that the filing spouse must exert a “best faith effort” to locate the other parent.

Generally, a “best faith effort” includes investigating the likelihood of serving your spouse via the five ways described in the law. These include voluntary acceptance (the person accepting the papers in hand), sheriff’s service, a special process server, service by special order of the court, and service by publication. Before a court will permit you to serve your spouse by publication, you must show—usually by sworn affidavit—that you have done everything you can to locate in other ways.

Service By Publication and Default Divorce

To start the process of service by publication, Illinois law dictates that the notice be placed in a newspaper of general circulation in the area of the other spouse’s last known address. In Chicago, for example, a notice could be published in the Chicago Tribune or the Chicago Sun-Times. The notice must run for at least three weeks. This is generally held to be enough time that a person could notice the posting while balancing cost concerns for the petitioner. If no response is forthcoming after the notice has run, the petitioner may proceed with their divorce filing as normal, treating the case as if the respondent declined to be involved.

It is important to note that even if your spouse does not respond to the notice, your case can go forward, but certain aspects of your divorce will be “reserved” for resolution at a future date. This is because your spouse’s rights on certain issues cannot be waived or dispensed with unless they are declared legally dead. Child custody is the primary example of such an issue. In many cases, parental concerns will not be decided without some input from both parents, and if both are not present, the parent who is there will get temporary custody only.

Contact a Divorce Attorney

If you are looking to pursue a divorce but you are unsure of where to find your spouse, contact an experienced Kane County divorce attorney. We can help you explore your options, including service by publication, so that you can move forward with your life. Call 630-232-9700 to schedule an appointment at The Law Offices of Douglas B. Warlick & Associates today.



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