When most people think about divorce, they envision a family unit in which a couple who lives together—with or without children—moves apart from one another and terminates their marriage. While this is certainly true for some families, this is not the case for many others. Whether one spouse has abandoned the household for a period of time, is purposefully hiding to avoid family/life obligations, or the married couple separated/split-up a while ago but never got divorced – there are a number of possibilities in which you may find yourself wanting a divorce but unable to locate your spouse to serve them with divorce papers.
Does this mean you cannot obtain a divorce? Absolutely not! But there are a few steps you must follow to get divorced when your spouse is MIA:
- Due Diligence / Diligent Inquiry
The first step in serving your missing spouse with divorce papers is to conduct a diligent search and inquiry into their whereabouts. This means more than calling your spouse’s phone number just to discover that they never return your calls or the number has been disconnected. You should troll the internet, including all social media accounts associated with your spouse, the state department of motor vehicles, voter registration office – any location or entity that may have current contact information for your spouse. You may also have to call any of your spouse’s known relatives to inquire about your spouse’s whereabouts. You may also want to consider having your attorney search for your spouse. Attorneys may have additional resources available to help locate your spouse or can hire a skip tracing service for this purpose.
In Virginia, you should also attempt to have your divorce papers be served by the local sheriff or a private process server. After unsuccessfully attempting to serve your spouse, the sheriff or process server can also sign a sworn statement stating that attempts were made to serve your spouse but were not fruitful. These statements can be used as evidence of your diligent search.
Once you have exhausted all reasonable available means of locating your spouse, you will need to sign an affidavit attesting to the fact that you have conducted a due diligent search. Your attorney will draft this affidavit for you and go over it with you. This affidavit will be necessary to secure a court order allowing you to serve your spouse by publication.
- Obtaining Court Approval
Once you have legally executed an affidavit of diligent search, you will need to move the court for a publication order. Basically, your attorney will file a motion along with your affidavit that explains you have done everything to locate your spouse to no avail. If the court is satisfied with your search for your spouse, the judge will issue an order for publication.
Once you have received your order for publication, the order will have directions on how to properly publish a notice of your divorce. In Virginia, this means that you must select a newspaper to file a notice of publication in once a week for a period of four (4) consecutive weeks. The idea is to give your spouse an opportunity to receive notice of your divorce proceedings by observing the notice of publication in the newspaper. Though the clerk of the court will draft the notice and arrange for its publication, you will be responsible for the costs associated with publication.
After the fourth week that your notice has been published, your spouse will have 21 days to respond to your divorce petition. If, after this time your spouse has not filed an answer or any other papers with the court, you and your attorney can move for a default judgment. If your spouse does not respond to your motion for default or appear at the hearing, then the court will likely enter a final order of divorce in the absence of your spouse.
As you can see, it is definitely still possible to obtain a divorce when you cannot locate your spouse. Unfortunately, serving your spouse by publication will involve more time, effort and money on your part due to the requirement of exhausting all possible means of tracking down your MIA spouse and the costs of publication. However, with the help of a knowledgeable family law attorney—like those at the DiPietro Family Law Group—your attorney may be able to minimize your workload by attempting to locate your spouse for you and recouping the fees for publication as court costs.
If you are considering a divorce and worry that you may not be able to locate your spouse, or have any other family law issue, you should hire a qualified and compassionate family law attorney who understands your case and who will fight for your rights. The team of family law attorneys at the DiPietro Family Law Group has years of experience representing spouses in divorce cases and all other family law matters. Contact one of the DiPietro family law attorneys today to schedule a consultation with a caring professional at (888) 530-4374.