Divorce Law: Divorcing a Missing Spouse

You got married years ago. Then something happened, you drifted apart. Whatever the reason, you haven't seen your spouse in years. But you never filed the paperwork for divorce. Now you have a new love in your life and, before you move forward with your life, you have to finish the part of your life that's still outstanding. Unfortunately, you don't even know where your spouse is. Here are some answers for some frequently asked questions if you find yourself in this position.

1. If your spouse has fallen off the face of the earth and you’ve tried everything and can’t find him to serve with a petition for divorce, what to you do then? 
The courts will require you to first make every effort to find your spouse. You will need to contact your spouse’s family members, friends and employers to see if they know where he is. I once had a spouse I was trying to serve who was strung out on drugs and living from crack house to crack house. We asked the court for substituted service because we couldn’t find him and the judge told us to try harder because “anyone can be found.” 

We eventually found him when he surfaced after several months and got him served. This can give you an idea about how the courts are not willing to casually and freely allow you to post service in the newspaper just because you don’t know where he is at the moment. You’ll have to at least try to find him first.  

2. So what is this “service of citation?” 
Most states, when you file your petition for divorce, will also issue a citation. Service of citation is a term that describes the formal process that you, as the petitioner, give notice to the opposing party that he has been sued. The purpose of the citation is to give the court jurisdiction over the party, to satisfy due-process requirements, and to give the sued party the opportunity to appear and defend himself.

The citation also has a copy of your divorce petition attached to it. Service of process is accomplished when this citation and a copy of the pleadings are delivered to the party being sued. Once you can show the court that you properly served the party with the citation and pleadings and he doesn’t respond, you can then get a default judgment for your divorce.   

3. Going back to the party who can’t be found, how do you get service of process over him? 
Each state has specific rules for serving parties who can’t be found.  You will have to go to the court to get it to authorize service by publication. Once the court grants this, you the publish the citation in a newspaper in the county where the suit has been filed. Some states require you to publish it only once while others require you to publish it more than once. Once you’ve met the specific requirements for service by publication, you can then move ahead with your divorce and get it finalized.    

Nancy Perry is an attorney in Texas with The Perry Law Firm, L.L.P.  Please visit her Web site at www.TexasLaw4U.com or e-mail her at nancy@texaslaw4u.com.