The list of possible reasons to get a divorce is massive. There are numerous personal, financial, and family based reasons to consider getting a divorce. Sometimes divorce is the only option. In most States the law is clear that if one side wants a divorce they will eventually get that divorce. Occasionally there is a problem when there is only one side. How do you get divorce when you don’t know the whereabouts of your spouse.
If you truly don’t now where your spouse is it becomes a legitimate issue, compounding the already complex issues with getting a divorce. At the very least it will delay the divorce process at the beginning and may add additional costs. Under the very best of circumstances, getting a divorce is complicated. If your spouse has disappeared and you want a divorce, you will have to be proactive and aggressive to get the divorce granted. Waiting passively for your spouse to resurface will not help.
In a divorce proceeding both parties must be given notice of the suit and the opportunity to appear. The notice process is the largest stumbling block when you spouse is missing. How do you serve notice on someone when you don’t know where they are.
The point of requiring that you serve the petition for divorce on your missing spouse is to give them notice that you are seeking a divorce. This knowledge will allow them to decide if they want to be part of the process that allows both the husband and wife to negotiate and hopefully reach certain agreements or at least be present and understand the decisions that have been reached by the judge in a trial. If you spouse is missing the law allows you to proceed forward after you have followed these steps:
1. You must search for your spouse. As stated above the law strongly desires that your spouse be served notice, and requires that you make a “diligent effort” to find him or her before allowing you to move forward without them. Options for a search include internet searches, contacting family and friends and going to old addresses.
2. File a Motion for Service by Publication. If your spouse is can not located, a motion must be filed requesting that the judge approve service by publication. This means that instead of personally handing him the petition the court is allowing you to file notice with the newspaper to be printed showing that a divorce proceeding has been filed. The idea is that your spouse will have a chance to read it and appear to contest matters. Before the judge will approve this you will have to prove that you made a “diligent effort” to find your spouse. This is done by signing an affidavit stating the efforts you have made. Once the judge approves the notice by publication you need to contact your local newspaper. They will be able to provide you with a form to have notice published.
3. Take a default judgement. After the notice by publication has been published you must wait 30 days for your spouse to respond. After that time you may take a default judgment against your spouse. Your divorce will be granted by the judge at a hearing. At that hearing you must be able to prove that you followed each of these steps. Failure to follow the rules precisely can result in a loss if your spouse appears and appeals the divorce or files a motion for new trial.
Divorce from an absent spouse is a complicated legal process that has many steps that must be accomplished in a precise order. While it is possible to move forward on your own it would be best to seek the advice of a licensed attorney before attempting to divorce your missing spouse.
Chris McHam is the lead attorney for McHam Law, a Round Rock, Texas based law firm focusing on family law, criminal defense, probate matters and civil litigation in Travis County, Williamson County, Hays County and Bell County.