Service by Publication in a Divorce
Some divorcing spouses cannot wait to separate and move on with their lives, but most understand that it is necessary to let the other spouse know where they are initially living so that the divorce can be finalized. But what happens when your spouse disappears without leaving a forwarding address, telephone number, or other means of contacting him or her? Must your plans for divorce be put on the back burner if your spouse is missing in action?
How Are Spouses Notified That Their Partners Have Filed for Divorce?
In the vast majority of Illinois divorces, the spouse filing for divorce must cause a copy of his or her divorce petition as well as any accompanying affidavits and documents to be served (i.e. delivered to) on the other spouse. This service is typically accomplished by the local county sheriff or, in some cases, by a private process server. (In either case, you will most likely need to pay a fee to compensate the process server before he or she will deliver your petition and accompanying documents.) Once service has been accomplished, your spouse has a limited amount of time within which to respond to the petition. This gives your spouse an opportunity to have his or her side of the situation heard and considered by the court.
What Should I Do If I Cannot Find My Spouse to Serve Him or Her?
If you truly have no idea where your spouse is located, think carefully about whether you want to pursue service by publication without trying other methods of locating your spouse such as hiring a personal investigator. While a court can grant you a “default divorce” if you cannot locate your spouse, a court will not decide issues of child support, visitation, spousal support or property division.
If you do decide to proceed with serving your spouse by publication, make sure that you:
- Prepare an affidavit for the court indicating that you have attempted to locate your spouse but have not been successful in doing so. Be sure to list the specific steps you have taken to find your spouse. You should have contacted his or her family and friends for information, looked in telephone directories for the area of his or her last known whereabouts, and checked for a forwarding address.
- Present your affidavit to the court. If found acceptable, the clerk will run a legal notice in a local newspaper of general circulation for at least three weeks. You must wait until this three week period plus an additional response period have run before taking further action.
After the newspaper notice has been run and your spouse still has not responded, you may request the court enter a decree declaring you divorced. If you want the court to address other matters such as maintenance and child support, you must find your spouse and personally serve him or her.
Our skilled DuPage County family law attorneys can help you navigate this delicate situation to ensure you can obtain a divorce decree when necessary and help ensure that decree is able to withstand most any legal challenge made in the future if your spouse resurfaces.