Can You Get Divorced from a Missing Spouse?
Divorce is a legal process that requires notifying both parties. But what happens when you want to end your marriage in Illinois, and you’ve lost track of your spouse? Can you get divorced from a missing spouse? The answer is generally yes, but it involves a more complex, time-consuming and expensive process. And as a word of warning, this is for information. I no longer handle missing spouse cases.
The Requirement for Notice
Due process in the U.S. legal system ensures that everyone has the right to be notified of legal proceedings that affect them. In divorce, this means your spouse must be formally served with the divorce papers. This gives them the opportunity to respond and participate in the case.
What Happens When You Can’t Find Your Spouse?
If you can’t locate your spouse, you can’t simply skip the notice requirement. Illinois law provides a process called “service by publication” to address this situation.
Service by Publication: A Summary
Service by publication involves the following general steps:
Due Diligence: You must make a diligent effort to find your spouse. This might include:
- Contacting family and friends
- Checking phone directories and online searches
- Sending letters to their last known address
- Searching for public records
- Hiring an investigator: Investigators have access to databases that the public does not. They can often find a person even when you cannot.
Affidavit and Next Steps: You must file an affidavit with the court detailing the steps you took to find your spouse. The Court may then allow:
- Publication of the Notice: The court may then allow you to publish a notice of the divorce case in a newspaper of general circulation in the county where your spouse is believed to reside (or where the case is filed). This can be really expensive!
- Waiting Period: After the publication, there’s a waiting period to allow your spouse time to respond.
- You may also be required to try:
- Having the Sheriff try to serve papers to your missing spouse at their last known address
- sending notice through certified mail
- sending notices through mail that can be traced, such as priority mail
- sending emails, messages and communications
Last Step: Default Judgment: If your spouse doesn’t respond within the allotted time, you can ask the court to enter a default judgment, meaning the divorce can proceed without their participation. The Court might not be able to do anything other than give you a divorce.
An Alternative: If you have children and receive public aid, you might be able to get the State’s Attorney or Attorney General’s office to open a child support case for you. These agencies have tools to search for a person’s W4 withholding notice, which might let you know where your missing spouse is. This database is only available to governmental agencies, such as State’s Attorneys.
Challenges and Considerations in Divorcing Your Missing Spouse
Getting a divorce when you can’t find your spouse presents several challenges:
- Increased Costs: The process of service by publication involves additional expenses, such as newspaper fees and potentially fees for investigators to aid in the search.
- Time Consumption: It significantly lengthens the divorce process due to the required waiting periods and procedural steps.
- Proof of Diligence: Proving to the court that you’ve made a reasonable effort to find your spouse can be complex and may require documentation and evidence.
- Potential Complications: Even with a default judgment, there might be future complications if your spouse reappears and challenges the divorce decree.
Why This Isn’t My Practice Focus
My practice centers on facilitating amicable and efficient divorce resolutions through methods like uncontested and collaborative divorce. These approaches rely on cooperation and communication between both parties. Cases involving missing spouses are inherently adversarial and complex, requiring a different set of legal skills and resources.
FAQ: Can You Get Divorced Your Missing Spouse?
Q1: Is it possible to get a divorce in Illinois even if I don’t know where my spouse is?
A: Yes, it is generally possible to get a divorce in Illinois even if you can’t locate your spouse. However, it’s a more complex and time-consuming process than a standard divorce. You’ll need to follow specific legal procedures to notify your spouse, even if you can’t find them.
Q2: What steps do I have to take to get a divorce if I can’t find my spouse?
A: You’ll need to demonstrate to the court that you’ve made a “diligent effort” to find your spouse. This includes steps like contacting family and friends, checking public records, and trying to have them served.
Q3: Why is it more difficult and expensive to get a divorce if I can’t find my spouse?
A: The process is more involved because the court needs to ensure that your spouse is given proper notice of the divorce proceedings. This involves extra steps, like service by publication, which can add time and costs (like newspaper fees). You might also need to hire an investigator to help locate your spouse.
Q4: Should I handle a divorce on my own if I can’t find my spouse?
A: It’s strongly recommended to seek legal help. Cases where you can’t find your spouse have unique legal complexities. An attorney experienced in this area can guide you through the process, ensure you meet all legal requirements, and protect your rights.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with an attorney to discuss your specific situation and legal options