One of the questions I’m frequently asked is whether a person may obtain a divorce when he/she cannot locate the other spouse. Though knowing your spouse’s contact information is extremely helpful in getting him/her served with divorce papers, lack of information will not bar a spouse from obtaining a divorce. The process will take slightly longer, and there are some additional costs, but the petitioning spouse may still obtain a divorce.
An important tenet in the American legal system is notice and an opportunity to be heard when someone files a complaint against us. Usually notice comes in the form of being served by the constable or a private process server with suit papers. This is difficult, if not impossible, when spouses have been separated for long periods of time, or when the spouse simply doesn’t want to be found. After filing for divorce, the petitioner must have divorce papers served the respondent’s last known address. If the process server is unsuccessful, he/she will provide an affidavit stating the number of attempts and the results of those attempts at service. For instance, the affidavit may say “Mr. Doe refuses to answer his door even though I can hear him inside and see him through the windows” or it may say “The person at respondent’s last known address has no knowledge about where the respondent lives.”
After such facts are established, your attorney will petition the court for alternative or substitute service. If the court permits service by publication or posting (i.e., leaving notice at the courthouse door or placing notice in a newspaper of general publication) then the court will also appoint an attorney ad litem to represent your spouse’s interests. This attorney is appointed by the court to attempt to locate the other spouse. If the attorney ad litem is unsuccessful, the attorney will file a statement of evidence stating so, and the court will grant the divorce.
Though it may seem irritating to have to jump through these extra hoops (service through publication and appointing and attorney ad litem), these hoops are there to protect some of the important foundations of our legal system. These procedures also protect the petitioning spouse from future claims of the long, lost spouse.