If I can’t locate my wife, can I still get divorced?
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If I can’t locate my wife, can I still get divorced?
My marriage lasted less than a month before my wife had a panic attack and moved out. She said she was going to file for divorce. Several years later I found that I’m still married when my fiance and I plan on getting married soon. I don’t know where she lives, what name she’s going by, or anything else. Can I file for divorce without knowing any of that?
Asked on August 30, 2011 Illinois
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
There is a legal remedy known as "divorce by publication" for a situation such as yours. Basically, legal action typically can't be taken against someone without giving them opportunity to appear and explain their side of things, so notice must be given to them. Specifically, even if a spouse can't be located they still must be informed of the divorce proceedings before it can proceed.
In a divorce by publication You as the filing spouse (i.e. petitioner) must make a every effort to find your missing spouse (i.e. respondent). You will have to present proof to a court that you made a diligent search to find them (e.g. you will have to show that you checked with family/friends, voting records, the phone book, DMV, and any other source that would likely lead to uncovering their current location). Once you have demonstrated to the the court's satisfaction that you have made a such a search, you will be allowed to serve your spouse by publishing notice of the divorce in a newspaper selected by the court (in lieu of personal service).
In most states, the respondent typically has 30-60 days to file a reply. If they fail to do so within that time, the petitioner can then file a request to enter a divorce by default. It is generally granted upon the terms requested by the petitioner (although the respondent is given a certain time frame in which they can appeal).
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